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Is the right to make reproductive choices being violated vis-à-vis the Surrogacy (Regulation) Bill, 2019?

Is the right to make reproductive choices being violated vis-à-vis the Surrogacy (Regulation) Bill, 2019?
- Swati Sharda, Assistant Professor of Law, Raksha Shakti University

Ever since the institution of marriage has come into existence, its primary objective has been laid as the procreation of children. In lieu of this, there have been instances of infertility which though a medical issue but has been regarded as a social taboo for a really long time. Being a medical issue, there was a need to find a treatment or a way to move out of such a social taboo. The coming up of alternatives under the Alternative Reproductive Techniques (ART) that marked its popularity in India with the birth of Kanupriya alias Durga, who was born out of IVF (In Virto Fertilization) in Kolkata, the first of its kind in India and second in the world which has undoubtedly given a ray of sunshine to the lives of numerous couples who have been challenged for all these years, medically.
Out of the ART mechanisms, the one that has been much sought after is Surrogacy. Surrogacy is basically a mechanism through which a womb is hired for carrying and delivering a child for some other person. In this process, the Surrogate mother either uses her own egg or a fertilized egg of some other woman that is implanted in her womb for the birth of a child. Surrogacy as a mechanism has proved to be a savior that completes a couple, socially and mentally. 
With the shift in lifestyle patterns of the Generation X, it is certainly not one rare instance to be seen amongst various couples where they fail to procreate a child through the natural process. In a world that is transforming to greater scientific and medical heights with each passing day, can we just let these couples live their entire life in despair when we actually can have an ‘alternative’?
With India witnessing many landmark judgments in the recent years that is actually taking the people of this country towards a development that was not much talked about until a few years back, like decriminalizing Sec 377 of IPC and recognizing the right of a woman to make reproductive choices as a constitutional right by Justice K.S Puttaswamy, are we willing to a pass a law that chooses who should have the right to have a child?
In lucid words, Surrogacy is a contract that is entered into between the intending couple and the surrogate mother who is willing to carry and deliver a child in her womb for them. Thereby, once the child is born, the new born is to be treated as the child of the intending couple. Surrogacy can broadly be classified into 
• Altruistic: An agreement that takes place between the desiring couple and the surrogate mother which doesn’t involve any monetary compensation as a consideration.
• Commercial: An agreement for the procurement of a child for a monetary consideration between the surrogate mother and the desiring parents with the intent to give the child to the couple after being born. 
The first attempt to regulate Surrogacy was made by the Indian Council of Medical Research in 2005 by drafting guidelines for Accreditation, Supervision and Regulation of ART clinics in India. Similar bills were also drafted in 2008, 2010 and 2014 but sadly have been put in the cold storage for all these years by the Parliament. The need for appropriate action towards the ART Bill has been considered the need of the hour as it brings under its umbrella, techniques like IVF and other Surrogacy mechanisms. The massive exploitation of women through their husbands and in-laws, especially the lower income strata, considering the huge money involved and ignoring the physical loss of the health of the woman called for a law that regulates such exploitation. There have been instances where the ART clinics were not equipped with qualified doctors due to which the surrogate mother’s life was endangered. These ART clinics have made enormous money by duping these financially deprived surrogate mothers. Hence, a law to regulate these ART Clinics was the need of the hour!
The Surrogacy (Regulation) Bill, 2016 was followed post this desired need. This bill has been brought to life again by getting introduced in the Lok Sabha and very swiftly has also been approved in 2019. This however has failed to take into consideration the recommendations of the ART Bill, 2014. Ironically, the Rajya Sabha has sent the bill to the same Parliamentary Committee for consideration before taking any decision on the same. 
The Act, 2019 lays down a complete ban on the practice of Commercial Surrogacy in the country. It is an attempt to regulate the exploitation of women. Nevertheless, it has been challenged and questioned whether this piece of legislation is depriving the women to have a choice over her womb and has thereby been a violation of her right to choose. In a series of landmark judgments, where the status of live-in relationships in India have been given constitutional validity on the one hand and an attempt has been made on the other to control and regulate the womb of the women intending to surrogate. The issue remains undiscussed.
On the other hand, the Act, 2019 has completely excluded all the couples other than a married couple who have been married for at least 5 years. This implies that homosexual couples are not allowed to opt for one of the most practical ways of having a child. This deprives them of their minimalistic options of having a child of their own as they can’t conceive biologically. Depriving them to opt for Surrogacy is unfair to them in every possible aspect. Unmarried couples are also put away from having a child through Surrogacy. The point remains, until when are we going to reason the procreation of a child as an end to a marriage? Is a (single) person ineligible to have a child through surrogacy just because they don’t have a spouse? 
Since the Act, 2019 completely bans Commercial Surrogacy in the country, the mechanism has now become out of the reach for many desirable couples as it becomes even more difficult to find a surrogate mother within their own blood relation. The chances of all these needy people has reduced by many folds and also in many cases locked the only possible hopes of having a family. 
The Act, 2019 should have made some provisions that along with regulating commercial surrogacy, it should also have made way for the intending couples to approach the National/ State level Surrogacy boards to consult them in certain special cases. Complete ban on the process is not the right approach to be dealt with in such a serious cause.
Considering the cases that have unfolded in the past that have led to the massive exploitation of women, the prohibition of Commercial Surrogacy can be termed as a right decision but taking the overall aspect, there are some areas that needs immediate notice to be taken before the Act is passed by the Rajya Sabha.
The regulation on the ART clinics still remain the most important need of the day and unfortunately, the Act, 2019 doesn’t take any emphasis on the issue. Until and unless these clinics are governed by some stringent regulatory laws, the most important issue would remain unanswered and the essence of enforcing the Surrogacy (Regulation) Act, 2019 would not be achieved. 
The loopholes in the Act, 2019 needs to be discussed and addressed especially when the country is moving towards development in one of the best possible ways of its time!

1. Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing Perfect Mother-Worker’ (2010) ‘Signs’ 969.
2. NH Patel, YD Jadeja, HK Bhadarka, MN Patel, NR Sodagar, ‘Insight into different aspects of surrogacy practices’ (2018) ‘Reprod Sci’ 212.
3. Sanjeet Bagcchi, ‘Mothers Who Turn to Surrogacy to Support Their Families Face Ostracism, Study Shows’ (2014) ‘BMJ’ 348.
4. Sowjanya Tamalapakula, ‘Caste, patriarchy and the surrogacy market in India’ (The NEWS Minute, 14 January 2019) 5. last accessed 14 September 2019
5. The Surrogacy (Regulation) Bill, 2019 (Bill no. 156 of 2019)