Why Exclude Single Women From Opting For Surrogacy: Delhi HC

Relevance: Indian Polity, Law, Governance, Constitutional Rights, Fundamental rights, Women's Rights & Health, Social Issues, Role of the judiciary

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Why in the news?

• Recently, Delhi High Court questioned the Centre on why single, unmarried women are excluded from availing surrogacy benefits under the Surrogacy (Regulation) Act, 2021.
• The law currently only allows widows and divorcees between the ages of 35 and 45 to avail surrogacy.
• It is a case where a specific provision of a legislative act is being challenged directly in the High Court due to alleged violations of fundamental rights, making it a matter of the court's original jurisdiction.

What is the Original Jurisdiction of the High Court?

The term "original jurisdiction" refers to the power of a court to hear a case for the first time, as opposed to appellate jurisdiction where it hears cases on appeal. Here's a broad overview of the original jurisdiction of High Courts in India:

• Writ Jurisdiction: Article 226 of the Indian Constitution gives High Courts the power to issue writs for the enforcement of the fundamental rights or for any other purpose. This is broader than the writ jurisdiction of the Supreme Court (under Article 32) which is limited to the enforcement of fundamental rights only.
• Matters of Admiralty, Probate, Matrimonial, and Contempt of Court: In many states, the High Court has original jurisdiction in cases related to admiralty (maritime) matters, probate (will and administration of estates), matrimonial disputes, and contempt of court.
• Disputes Relating to Elections of Members of the State Legislature: If there are disputes regarding the election of members to the state legislative assembly or council, they can be brought directly to the High Court.
• Certain Civil Cases in Presidencies: In some cities, notably the three presidency towns of Mumbai (Bombay), Chennai (Madras), and Kolkata (Calcutta), the respective High Courts (Bombay High Court, Madras High Court, and Calcutta High Court) have original jurisdiction over certain civil cases.
• Inter-State Water Disputes: Although most inter-state water disputes are usually resolved through tribunals, there are situations where a High Court may exercise original jurisdiction.
• Cases Transferred from Lower Courts: In certain situations, if a High Court believes that a case pending in a lower court involves a substantial question of law, it can transfer the case to itself and decide upon it.

Background of the Case

• The High Court's query came during the hearing of a petition by a 44-year-old unmarried woman.
• She challenged Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021, which excludes women like her from the surrogacy procedure.
• The petitioner also raised concerns about the stipulation that forces single women (widow or divorcee) to use their own eggs for the procedure.
• The petitioner wishes to use donor female gametes due to medical advisories against using her own at her age.
• Her brother has given consent to donate his male gametes to ensure a genetic connection.
• The petitioner claims that the current restrictions are:
  • Irrational
  • Unlawful
  • Discriminatory
  • Violative of fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.

Important Constitutional Provisions

• Article 21 - Right to Life and Personal Liberty: The Supreme Court of India has expansively interpreted the right to life and personal liberty to encompass the right to health and the right to make decisions about one's body.
• Article 14 - Right to Equality: The Article ensures that the state shall not deny any person equality before the law or the equal protection of the laws. Discrimination in access to reproductive health services or forced sterilizations would violate this right.
• Article 15 - Prohibition of Discrimination: This Article prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. Any legislation or policy that discriminates against women in terms of their reproductive rights could be challenged using this article.
• Article 19 - Freedom of Expression: While primarily concerning the freedom of speech and expression, this can be linked to reproductive rights in terms of the freedom to seek, receive, and impart information, including information about reproductive health.

What is Surrogacy?

• Surrogacy is a reproductive method where a woman (the surrogate mother) agrees to carry and give birth to a baby for another person or couple (the intended parent or parents) who will become the child's legal parent(s) after birth.
• The process of surrogacy often involves legal and contractual agreements to ensure the rights of all parties involved (the surrogate mother, the intended parents, and the child).
• The legalities and acceptance of surrogacy vary widely from country to country, and in some places, it may be entirely prohibited or restricted to certain forms, such as altruistic surrogacy or commercial surrogacy.
• In altruistic surrogacy, the surrogate mother agrees to carry and give birth to the child without receiving any financial compensation or profit for her services.
  • The surrogate may be reimbursed for medical and other reasonable expenses directly related to the pregnancy and birth, but she does not earn a fee or profit for the surrogacy itself.
• In commercial surrogacy, the surrogate mother receives monetary compensation beyond just the medical expenses.
  • This compensation is for her services as a surrogate, and it's essentially a fee for carrying and delivering the child for the intended parents.

Why is India Preferred for Surrogacy?

• India has steadily developed as an international destination for commercial surrogacy since the first surrogate delivery in June 1994.
• In July 2012, a United Nations-backed research estimated the sector to be worth more than $400 million per year, with over 3,000 reproductive clinics spread across India.
• In 2022, the surrogacy market in India was valued at more than USD 14 billion. A compound annual growth rate (CAGR) of over 24.5% is anticipated from 2023 to 2032.
• In 2002, commercial surrogacy became allowed in India. Surrogacy in India has grown due to relatively inexpensive medical facilities, reproductive technological know-how, and the availability of women, primarily from low-income families who are prepared to take on the duty.
• The procedure costs around a third of what it costs in the United Kingdom and only about a fifth of what it costs in the United States.
• At the same time, Indian clinics are becoming more competitive, not only in terms of pricing, but also in terms of hiring and retaining Indian female surrogates.

Need for Surrogacy Regulations in India

The Surrogacy (Regulation) Act was introduced in India due to several pressing concerns related to surrogacy practices in the country.

• Unregulated Commercial Surrogacy: India had become a hub for commercial surrogacy, attracting people from different parts of the world due to lower costs and lack of strict regulations. The unregulated nature of this industry raised several ethical and legal dilemmas.
• Exploitation of Surrogate Mothers: There were numerous reports suggesting the exploitation of economically disadvantaged women, especially in rural areas, who became surrogate mothers primarily for monetary benefits.
• Commodification of the Child: Commercial surrogacy was criticized for treating children as commodities, with transactions resembling a marketplace for babies.
• Child's Rights and Citizenship Issues: There were instances where children born out of surrogacy faced issues related to citizenship, abandonment, and legal parentage, especially in cases involving foreign couples.
• Ethical Concerns: There were concerns about the ethical implications of surrogacy arrangements, such as the potential for coerced pregnancies, the selection of specific traits (e.g., gender), and multiple embryo implantations leading to forced abortions of additional fetuses.
• Medical Concerns: Multiple embryo implantations, a practice often employed to increase the chances of a successful pregnancy, raised medical concerns due to the increased risks associated with multiple pregnancies and births.
• Legal Ambiguities: In the absence of a comprehensive legal framework, disputes arose over parental rights, the rights of the surrogate mother, and the fate of the child, especially if born with congenital conditions or disabilities.
• International Scrutiny: The surrogacy industry in India came under international scrutiny due to concerns over the exploitation of surrogate mothers and the legal and ethical complications arising from international surrogacy agreements.

Surrogacy Laws in India

• The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 provide guidelines for surrogacy in India.
• The Surrogacy (Regulation) Act, 2021 is passed by the Parliament of India to regulate and oversee the practice of surrogacy in the country.
• Prior to the enactment of this law, surrogacy was largely unregulated in India, leading to various ethical and legal dilemmas.
• The main objective of this act is to prevent the commercialization of surrogacy, ensure the rights and well-being of surrogate mothers and children born out of surrogacy, and set conditions under which surrogacy can be performed.

Surrogacy (Regulation) Act, 2021

Here are some key details and provisions of the Surrogacy (Regulation) Act, 2021:

• Prohibition of Commercial Surrogacy: The act prohibits commercial surrogacy, which involves a surrogate mother receiving monetary compensation (other than medical expenses) for carrying a child. Only altruistic surrogacy, where no monetary benefit (except for medical expenses) is provided to the surrogate, is allowed.
• Eligibility for Intending Couples: The act specifies that only Indian married couples can avail of surrogacy. They should be legally married for at least five years, with the woman being between 23 to 50 years and the man between 26 to 55 years. Additionally, the couple should have a medical certificate indicating their need for surrogacy.
• Eligibility for Surrogate Mothers: A surrogate mother should be a close relative of the intending couple, married, and have at least one biological child of her own. She should be aged between 25 to 35 years and should not have been a surrogate more than once.
• Prohibition on Sale of Human Embryos: The act strictly prohibits the sale or import of human embryos for surrogacy.
• Establishment of Regulatory Bodies: The act calls for the creation of the National Surrogacy Board at the central level and State Surrogacy Boards at the state level. These boards will regulate and oversee surrogacy clinics and practices.
• Rights of a Child Born through Surrogacy: A child born through surrogacy will have the same rights and privileges as a biological child.
• Provisions against Exploitation: The act includes measures to prevent the exploitation of both surrogate mothers and children born through surrogacy.
• Penalties: Engaging in commercial surrogacy, abandoning or exploiting the child, or importing embryos can result in imprisonment and fines.
• Ethical Guidelines: The act mandates surrogacy clinics to follow certain prescribed guidelines that ensure ethical practices.

Challenges / Criticism Related to Surrogacy Regulations

• The two Acts have been criticized as discriminatory towards unmarried men who want to become fathers through surrogacy or married women who already have children and want to extend their family through the technique.
• Disqualifying others on the basis of their nationality, marital status, sexual orientation, or age fails the equality test.
• Reproductive autonomy, which includes the right to procreation and parenthood, is outside the purview of the state.
• Infertility cannot be required to pursue surrogacy: the certificate to establish infertility is an invasion of privacy under Article 21 of the Constitution.
• Surrogacy Hub in India: India has emerged as a hotspot for infertility treatment, luring people from all over the world with its cutting-edge technology and reasonable pricing to cure infertility.
• The altruistic paradigm assumes that a woman will undergo the physical and mental tolls of surrogacy for free and only out of compassion. In its approach, such an expectation is paternalistic, unreasonable, and patriarchal.
• It denies surrogates a valid source of income, which substantially limits the number of women prepared to go through surrogacy and, indirectly, denies intending parents the option to use it.

Challenges Associated with Cross Border Surrogacy

• Cross-border childless couples must not only deal with the language barrier, but they must also sometimes fight long legal battles to obtain custody of their children.
• Cross-border surrogacy also causes issues with citizenship, nationality, motherhood, parenthood, and child rights.
• Children are sometimes denied the nationality of the intended parents' country.
• The lack of an international legislation on surrogacy complicates matters for both surrogates and intended parents. It is possible that the surrogacy legislation in the home nation and the country where the baby is born differ.
• Many experts believe that a worldwide agreement comparable to the Hague Adoption Convention might bring consistency across countries, streamlining the adoption process.

Surrogacy Laws in Other Countries

• While countries such as the United Kingdom, the United States, Australia, the Netherlands, and Denmark allow altruistic surrogacy, countries such as France, Germany, Italy, Spain, Portugal, and Bulgaria outlaw all types of surrogacy.
• Both altruistic and commercial surrogacy are permitted in Armenia, Georgia, Kazakhstan, Russia, and Ukraine.
• Surrogacy is not illegal in Kenya, Malaysia, or Nigeria, although there is no specific legislation to govern the practice.
• Surrogacy is unregulated in the Czech Republic, Colombia, Chile, and Hungary, among other countries.

Conclusion

The Delhi High Court is actively seeking clarity from the Centre regarding the apparent discrimination in the surrogacy laws, especially towards single, unmarried women. The outcome of this case could potentially reshape the surrogacy regulations in India.

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FAQs

MCQs

Question: In the context of recent advances in human reproductive technology, “Pronuclear Transfer” is used for (UPSC 2020)

(a) fertilization of egg in vitro by the donor sperm

(b) genetic modification of sperm producing cells

(c) development of stem cells into functional embryos

(d) prevention of mitochondrial diseases in offspring

Question: Which of the following statements is correct about the surrogacy regulations in India?

(a) Commercial surrogacy is allowed for married women aged between 25 and 35.

(b) Altruistic surrogacy permits the surrogate mother to receive financial rewards for her pregnancy.

(c) The surrogate mother in altruistic surrogacy receives no financial rewards except for essential medical expenses.

(d) The law mandates that the surrogate mother be unrelated to the intending couple or woman.

Question: Consider the following statement regarding Surrogacy Regulation Act 2021:

1) A child born through surrogacy will have the same rights and privileges as a biological child.

2) The law mandates that the surrogate mother be unrelated to the intending couple or woman.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2