INTRODUCTION

Merriam Webster Dictionary defines equality as the quality or state of being equal. The term
equality under the Blacks Law Dictionary is defined as The condition of possessing the same
rights, privileges, and immunities, and being liable to the same duties.

The Article 14 of the Indian Constitution guarantee the right to equality to every citizen of India.
The Article 14 declares that the State shall not deny to any person equality before the law or
equal protection of law within the territory of India. Thus, Article 14 uses the two expressions
equality before law and equal protection of law. Equality before Law has its origin from
America and somehow is negative concept. It aims at implying the absence of any special
privilege by reason of birth, sex, religion etc in favour of individuals and the equal subject of all
the classes to the ordinary law. Equal Protection of Law has its origin from Britain and
somehow it is a positive concept as it aims at equality of treatment in equal circumstances. It
means whether someone is P.M. or President he should be deal with same law as normal being
deals with. Thus, what Article 14 forbids is class-legislation but it does not forbid reasonable
classification. The classification however must not be arbitrary ,artificial or evasive but must
be based on some real and substantial bearing a just and reasonable relation to the object sought
to be achieved by the legislation. Article 14 applies where equals are treated differently without
any reasonable basis. But where equals and unequals are treated differently, Article 14 does not
apply.

Recently, Central Government has proposed a Bill named, The Surrogacy (Regulation) Bill,
2016. The salient features of the Bill are

1. It bans commercial surrogacy.

2. Foreigner nationals can't get Indian surrogate mothers.
3. It legalises surrogacy for infertile Indian couples who have been married for at least 5
years.
4. No monetary benefit to Surrogate Mother.
5. Close Relatives can only be approached for Surrogacy.
6. If a couple already has a child, then they are barred under this Bill. But if that child is
Handicapped in any way, they can opt for surrogacy.
7. If a couple already has a surrogate child, they cannot approach a surrogate mother a
second time.
8. The Government has proposed that it will establish a National Surrogacy Board at the
Central Level, chaired by the Health Minister, and State Surrogacy Boards and
appropriate authorities in the states and union territories.

In this Assignment, the Author will analyse The Surrogacy (Regulation) Bill, 2016 in the light of
Doctrine of Equality. The purpose of this analysis would be to check whether the Doctrine of
Equality is violated under the proposed Bill or not.

BACKGROUND OF THE SURROGACY (REGULATION) BILL, 2016

When India legalized commercial surrogacy in 2002, it slowly gave rise to a booming industry of
foreign surrogacy requirements and fertility tourism, such so much that commercial surrogacy
was banned in 2015.

The question of foreign surrogacy became especially relevant after the case of Baby Manji
Yamada, i.e., Baby Manji Yamada vs. Union of India & Anr. on 29 September 2008. In 2007, a
certain Dr. Patel working at the Akanksha Infertility Clinic arranged for Japanese couple Ikufumi
and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was impregnated using a
mix of Yamadas sperm and an anonymous Indian womans egg. However, in the months to
come, Yamada and his wife filed for divorce. None of the Indian laws covered whose child the
baby (Manji) was: the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore,
there was even a petition filed later in court that Dr. Patel was running a child trafficking racket
by abusing the lack of surrogacy laws, and gaining easy money by enabling surrogacy. The court
finally granted custody to the babys grandmother. Although the booming surrogacy industry, the
easy abandonment of children, and the exploitation of women who were forced to become
surrogates many times in order to sustain their family; led to the necessity of this bill.

Jan Balaz v Union of India1, another case, on the citizenship of surrogate babies, led the Gujarat
High Court to state that there is extreme urgency to push through legislation which addresses
issues that arise out of surrogacy.

The Government then drafted a legislation known as the Assisted Reproductive Technology
(Regulation) Bill 2008, pending in Parliament since 2010, is now expected to be taken up in the
on-going winter session. For the time being guidelines for accreditation, supervision and
regulation of Assisted Reproductive Technology clinics formulated by the Indian Council of
Medical Research and National Academy of Medical Sciences are used as a basic platform and
the code for the purpose of conducting surrogacy in India.

The booming surrogacy industry, the easy abandonment of children, and the exploitation of
women who were forced to become surrogates many times in order to sustain their family; led to
the necessity of this bill, that is, The Surrogacy (Regulation) Bill, 2016

1 AIR 2010 Guj 21

THE SURROGACY (REGULATION) BILL, 20162

The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by establishing
National Surrogacy Board at Central level, State Surrogacy Boards and Appropriate Authorities
in States and Union Territories. The proposed legislation ensures effective regulation of
surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile
Indian couples. The major objectives of the Bill are to regulate surrogacy services in the country,
to provide altruistic ethical surrogacy to the needy infertile Indian couples, to prohibit
commercial surrogacy including sale and purchase of human embryo and gametes, to prevent
commercialization of surrogacy, to prohibit potential exploitation of surrogate mothers and
protect the rights of children born through surrogacy.

The salient features of the bill are:

1. To allow altruistic ethical surrogacy to intending infertile couple between the age of 23-
50 years and 26-55 years for female and male respectively.
2. The intending couples should be legally married for at least five years and should be
Indian citizens.
3. The intending couples have not had any surviving child biologically or through adoption
or through surrogacy earlier except when they have a child and who is mentally or
physically challenged or suffer from life threatening disorder with no permanent cure.
4. The intending couples shall not abandon the child, born out of a surrogacy procedure
under any condition.
5. The child born through surrogacy will have the same rights as are available for the
Biological child.
6. The surrogate mother should be a close relative of the intending couple and should be
between the age of 25-35 years. She can act as surrogate mother only once.
7. The surrogate mother will carry a child which is genetically related to the Intending
Couple.
8. An order concerning the parentage and custody of the child to be born through surrogacy,
is to be passed by a court of the Magistrate of the first class.
9. An insurance coverage of reasonable and adequate amount shall be ensured in favour of
the surrogate mother.
10. National Surrogacy Board shall exercise the powers and shall perform functions
conferred on the Board under this Act.
11. The Board shall consist of the Minister in-charge of the Ministry of Health and Family
Welfare, as the Chairperson, Secretary to the Government of India in- charge of the
Department dealing with the surrogacy matter, as Vice-Chairperson and three women
Members of Parliament, of whom two shall be elected by the House of the People and
one by the Council of State as Members.

2 http://www.dhr.gov.in/sites/default/files/surrogacyregbill_0.pdf
12. The National Surrogacy board and State Surrogacy board shall be the Policy making
bodies and Appropriate Authority will be the Implementation body for the Act.
13. The appropriate authority shall comprise of an officer of or above the rank of the Joint
Director of Health and Family Welfare Department, as Chairperson, an eminent woman
representing womens organization, as member, an officer of Law Department of the
State or the Union territory concerned not below the rank of a Deputy Secretary, as
member and an eminent registered medical practitioner, as a member.
14. The surrogacy clinics shall be registered under this Act after the Appropriate Authority is
satisfied that such clinics are in a position to provide facilities and can maintain
equipments and standards including specialised manpower, physical infrastructure and
diagnostic facilities as may be prescribed in the rules and regulations.
15. No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind
shall undertake commercial surrogacy, abandon the child, exploit the surrogate mother,
sell human embryo or import embryo for the purpose of surrogacy. Violation to the said
provision shall be an offence punishable with imprisonment for a term which shall not be
less than ten years and with fine which may extend to ten lakh rupees.
16. The surrogacy clinics shall have to maintain all records for a period of 25 years.
17. Transitional provision-Subject to the provisions of this Act, there shall be provided a
gestation period of ten months from the date of coming into force of this act to protect the
wellbeing of already existing surrogate mothers.
REASONABLE CLASSIFICATION versus THE SURROGACY (REGULATION) BILL,
2016

The Author will now comparatively analyse whether the SURROGACY (REGULATION) BILL,
2016 enshrines the Doctrine of Equality and whether the Classification under the proposed Bill is
reasonable. The Author will only deal with those Provisions of the Proposed Bill under which are
subject to some classification. Hence, the following contention:

1. The provision related to the age of Intending Parents

The Bill allows altruistic ethical surrogacy to intending infertile couple between the age of 23-
50 years and 26-55 years for female and male respectively. At the age of 18 and 21 girls and boys
respectively can choose their spouses but if at that very age being married they come to know
about their infertility, they cannot opt for surrogacy under the Proposed Bill. If at that age they
are competent to choose their spouse as well as government yet the Proposed Bill considers them
incompetent to go for surrogacy. The classification that after a certain age they can opt for
Surrogacy seems not be justified in comparison to the existing laws related to marriage and
voting. It is in breach of Articles 7 and 16 of the United Nations-backed Universal Declaration of
Human Rights, which call for equality before the law and the right of men and women of full age
to found a family. This is particularly ironic in light of the current governments frequent calls for
UN reforms and the countrys rising profile in global decision-making corridors.

2. The provision related to the time period of marriage of Intending Parents

Under the Proposed Bill, the intending couples should be legally married for at least five years.
This restriction on couples who have been married for less than 5 years seems not to be justified.
Since, there can be a case that either of them is suffering from such a disease that even other
Assisted reproductive technology (except Surrogacy) cannot help them, thus waiting for a time
period of 5 years for having their child doesnt seem to be justified. Thus, This classification of 5
years is in violation of Article 14.

3. Foreign National cannot opt for Surrogacy

Under the Proposed Bill, Foreigners are not allowed to opt for surrogacy in India. Since, the
purpose of the Proposed Bill is to protect a woman from exploitation, what difference does it
make to her whether the womb is being rented by an Indian or a foreigner? This classification
impliedly suggests that there are chances of exploitation of the surrogate mother only when it is
rented by Foreigner, which is not rationally correct. Thus, this is not the reasonable
classification.

4. Single parent cannot opt for surrogacy

The Bill bars unmarried couples, single parents, live-in partners and homosexuals, among others,
from availing of surrogacy services in India. This is a clear violation of Article 14 of the
Constitution, which assures every Indian citizen equality before the law or the equal protection
of the laws within the territory of India. By specifying that only married couple can opt for
surrogacy, the Central government is seeking to deny a host of perfectly suitable individuals who
are well within their rights to demand access to surrogacy services. This is certainly a direct
contravention of the spirit of our constitution. The bill fails to recognise and safeguard the equal
reproductive rights of all women and men, irrespective of their sexual orientation, marital status,
economic standing etc. However, it adopts a highly discriminatory approach by not securing the
reproductive rights of individuals who may have an alternative lifestyle, including those
currently excluded by the bill. As equal citizens of a progressive democracy, all Indian women
and men should have the freedom to decide matters pertaining to their reproductive rights. They
should have the right to decide when and how they want to start a family. While India is moving
towards a progressive society, where for example nowadays schools do not ask for the name of
the father, it is unfortunate that theres a law being contemplated to ban single parents from
opting for surrogacy. It is in breach of Articles 7 and 16 of the United Nations-backed Universal
Declaration of Human Rights, which call for equality before the law and the right of men and
women of full age to found a family. This is particularly ironic in light of the current
governments frequent calls for UN reforms and the countrys rising profile in global decision-
making corridors.

For Example, there are people who have alternate lifestyle and dont want to marry the opposite
gender or dont want to marry at all, so denying them to opt for surrogacy is very discriminatory.
Section 377 of IPC penalizes Homosexuality, but we cant deny that we have Homosexuals in
our Society. It would be positive step for our progressive liberal democracy that such
relationship are recognized and surrogacy as an option is available to them to have their own
baby. Thus, this classification which excludes Individuals who are either Homosexuals or are
single is highly discriminatory and should be done away with.

5. The provision relating to Surrogate Mother

This Proposed Bill specifies that the surrogate mother should be a close relative of the intending
couple and should be between the age of 25-35 years and also she can act as surrogate mother
only once. After the age of 18, girls are considered to be as an adult and have the right to caste
vote and to choose their spouse, so why she is not entitled to her reproductive rights. This
restriction of age violates of Article 14 and Article 21 of our Indian Constitution as his
classification is not reasonable.

As for its provision that the surrogate mother has to be a close relative of the intending couple, in
this age of nuclear families, is it possible to get a relative who will offer her womb? Moreover, is
it such a good idea for the surrogate to be only a close relative? There is the emotional pressure
involved in the altruistic surrogacy of any close relative, apart from the psychological
implications for the child born through a relative who could feel divided between the two
mothers. It must be hard for a woman acting as surrogate to have her brother-in-laws sperm and
her sisters egg and carry the pregnancy. The emotional upheaval that the surrogate has to go
through in this case needs considerable thought. As mentioned, this may not provide a healthy
environment for the child either. Altruistic surrogacy may be more difficult to handle than
commercial surrogacy. Just imagine a sister-in-law agreeing to carry a child for 9 months just to
see the child being taken away after he/she is born, but the child is always in proximity, since the
child continues to be a family member.

6. No Monetary benefit to the surrogate mother except the Insurance coverage

This bill prohibits Commercial Surrogacy and also puts a restriction that only a close relative can
be a surrogate mother, which means that Intending parents have to convince one of their relative
to bore their child without any monetary benefit. This idea seems to be farfetched as in a society
like ours it would be difficult for the Intending parents to convince any of their relatives to carry
their baby because the assumption of availability of close relatives volunteering to be altruistic
surrogate mother may be incorrect as similar assumption with respect to availability of organ
donors is said to have failed. Close relative is not yet defined. Perhaps a definition needs to be
introduced, specifying additional aspects such as the branch of family (husband or wife), degree
of separation, generation, etc. Not prescribing such stipulations may lead to increased risk of
congenital anomalies in the surrogate child along with religious and social issues such as both
parents being blood relatives, etc. The pre-condition requiring the surrogate mother to be a
married woman already having a biological child may be a hurdle in choice of surrogate
mother(s). Very often in altruistic surrogacy the payment may not come in hard cash but in the
form of house, car, jewellery or some such thing which could very often be a decision forced by
family members. The proposed law may also result in the creation of an illegal market, where
surrogate mothers are more vulnerable to exploitation.

Summary of Authors view on Reasonable Classification versus The Surrogacy

(Regulation) Bill, 2016

The Surrogacy Bill fails to adhere to the Golden Triangle3 test devised by the Indian Supreme
Court, in the case of Minerva Mills Ltd. & Ors versus Union of India & Ors 4, to inspect the
constitutional validity of the laws enacted by the Government. This test of reading equality,
liberty, and freedom of rights conjunctively aims to ensure that the basic fundamental rights of
individuals are not encroached upon by the State.

3 https://indiankanoon.org/doc/1939993/

4 1980 AIR 1789, 1981 SCR (1) 206

The proposed law infringes Article 145 of the Indian Constitution, which guarantees equality
before the law and equal protection of laws to all persons. Restricting altruistic surrogacy to
only married Indian couples and disqualifying others on the grounds of nationality, marital
status, and sexuality impinges upon the right to equality for being an unreasonable classification.
Given that the Bill is motivated by a desire to shield women from exploitation and prevent
commodification of the birth process, the restriction also fails to bear any nexus with the
intended objectives of the legislation.

Further, by disallowing the right to choice vis--vis surrogacy for homosexuals and unmarried
couples, the Bill reinforces the majoritarian Indian morality that stigmatizes the idea of
homosexuality and unmarried people living together. Here, it is pertinent to note that being a
homosexual6 or residing in a live-in relationship7 is not illegal per se in the country, and limiting
the access of altruistic surrogacy is a clear instance of discrimination against these minorities.

The Surrogacy Bill also contravenes several safeguards to human life, health and dignity
enshrined in the various international covenants ratified by India. By interfering with the
reproductive rights of the individual, the proposed law infringes upon the right to found a
family enshrined in Article 16 of the Universal Declaration of Human Rights 8. An additional
challenge to the Bill also arises from Article 16(1)(e) of the Convention on the Elimination of All
Forms of Discrimination against Women9, which requires state parties to ensure equality of
rights for men and women to decide freely and responsibly on the number and spacing of their
children.

The UN Special Rapporteur on the Right to Health 10 has also highlighted the importance of
freedoms and entitlements pertaining to reproductive, maternal, and sexual right, including the
right to family planning services for the attainment of the highest possible standard of physical
and mental health. The Bill further violates the states core obligation to ensure equal treatment

5 https://indiankanoon.org/doc/367586/

6 Suresh Kumar Koushal & Anr versus Naz Foundation & Ors, (2014) 1 SCC 1.

7 Indra Sarma versus V.K.V.Sarma, 2013 (14) SCALE 448

8 http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

9 http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf

10
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A_HRC_29_33_ENG.
DOCX
and non-discrimination in access to reproductive health service by restricting the access to
altruistic surrogacy.

CONCLUSION

In its present form the Surrogacy (Regulation) Bill 2016 seeks to achieve the twin goals of: (1)
preventing the exploitation of poor women; and (2) preventing the equating of the surrogacy
process with renting a womb. While the legislators intentions are well placed, their provisions
arent. Yes, the State must intervene to check the exploitation of poor Indian woman who are
coerced into surrogacy, but it should not be done in a manner which is inimical to other
individuals who are well within their legal and human rights to avail surrogacy services.

Instead of imposing a ban, the commercial surrogacy market should be regulated for the
protection of the vulnerable in the surrogacy contract. A balanced path by the Government would
be the adoption of a rights-based approach addressing the concerns of the surrogate mother,
children born out of surrogacy, and other stakeholders in the surrogacy market. India needs a
centralized system that could regulate the surrogacy market by addition of supplementary checks
and balances, transparency, and registration of surrogacy contracts. This would also eliminate the
middleman, ensuring that the entire compensation reaches the surrogate mother.

The proposed law is a clear case of homophobia, majoritarian enforcement of cultural norms, and
discrimination against non- heteronormative relationships. By limiting the access to surrogacy on
fallible and exclusionary grounds, the government will also provide impetus to a rising black
market for wombs. Lessons have not been learnt from the ban on sex-determination tests and
organ donations, which have previously pushed the entire market underground and left it
completely unregulated.
BIBLIOGRAPHY

The Author took references from the following:

http://www.prsindia.org/billtrack/the-surrogacy-regulation-bill-2016-4470/

http://www.legallyindia.com/blogs/the-surrogacy-regulation-bill-2016-all-you-need-to-know

https://indiankanoon.org/doc/1939993/

http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf

http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A_HRC_29_
33_ENG.DOCX

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