SHALINI SAKSENA speaks lawyer Anil Malhotra who has authored Surrogacy In India: A Law In The Making
Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality.
“Right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood and it is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally, cannot interfere,” Anil Malhotra says.
Infertility can’t be compulsory to undertake surrogacy. A certificate of “proven infertility” is a gross invasion of the right of privacy which is part of right to life under the Constitution.
“The Indian Council for Medical Research, working under the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. It stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date,” he tells you.
Anomalous and inconsistent as it may seem, in the matter of inter-country adoptions, the Government has a diametrically opposite policy. It statutorily propagates fast-track inter-country adoptions from India for foreigners.
The Juvenile Justice Act, 2015 allows a court to give a child in adoption to foreign parents irrespective of the marital status of such a person. The latest guidelines governing adoption of children, have streamlined inter-country adoption procedures, permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. However, parenthood via surrogacy is not allowed to single or foreign parents as persons entitled to equality.
Surrogacy, in vogue for over the past 12 years, has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented.
“The possible logic banning foreign surrogacy to prevent its misuse, seems counterproductive. Barometres of domestic altruistic surrogacy will be an opportunity for corruption and exploitation, sweeping surrogacy into unethical hands in an underground abusive trade. Relatives will be generated. Surrogates will be impregnated in India and shifted to permissible jurisdictions with lax laws. The end will defeat the means. Surrogacy will still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence can’t extinguish it at a stroke,” Malhotra says.