The Surrogacy (Regulation) Bill, 2016 passed in Lok Sabha has been a debatable development, given the stringent provisions of the Bill.
While the intention of the legislation is to regularise assistive reproductive technologies in order to give hope to hopeless couples, it also seeks to be visibly compliant with the established norms and ethos of the Indian society, notable among them being Section 7 of the Bill which prescribes protection for the surrogate child from abandonment.
The fact that Dr Subhash Mukhopadhyay had to commit suicide because he created “Durga”, India’s first test tube baby in 1978, for which he faced massive social harassment, tells us of the kind of social stigma attached to assistive reproductive technologies. The said “Durga” is now Kanupriya Agarwal who has given birth to a baby daughter who should be five-year-old now. In light of these glaring realities, it is important that the Bill had prescribed a wider ambit to prevent it from being draconian and prima facie unconstitutional in nature.
Section 5 of the Bill states:“No person, including a relative or husband of a surrogate mother or intending couple, shall seek or encourage to conduct any surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of Section 4.”
The above being a condition precedent to surrogacy is impractical and unlikely to fulfill the purpose of the Bill and therefore the government is required to relook into the same as it is evidently going to lead to grave psychological distress to the child as well as to the surrogate mother as she will be having access to the child by virtue of being a relative and it will be difficult for her to truly distinguish the exact relation with the child being that of an aunt or a mother. Apart from the fact that no close relation would willingly volunteer to be a surrogate mother as it involves getting implanted with the oocytes and embryos of a relative.
The unconstitutionality of the Bill is in the fact that there is clear differentiation in the classes of people who can and cannot apply for surrogacy. A bar on homosexuals and singles is arbitrary and violative of the Right to Equality enshrined in the Constitution as also laid down by the Apex Court in Ajay Hasia vs. Khalid MujibSehrawade (1981) 1 SCC 722.
The imprisonment and penalties provided in the Bill portray the insensitivity of the people responsible for drafting and having it passed in Parliament, towards persons connected to helping forlorn couples. An imprisonment of 10 years and penalty up to Rs 10 lakh is totally inconsistent with the principles of proportionality as laid down in various judgments of the Supreme Court. It is imperative for the government of the day to keep an open view with regard to the consequences of implementation before bringing in stringent punishments.
What naturally transpires is that the government should not be in haste to bring the implementation of surrogacy laws and consider to make pragmatic changes, such as protecting the surrogate mother from exploitation of any kind, instead of barring commercial surrogacy. More so, in the age where bio-physicists are creating genetically edited babies who would be resistant to HIV infection, which in future may revolutionise treatment to various diseases and severe infections which have passed through generations.
Beni Chatterji is a Senior Advocate.