Abstract:
Surrogacy (Regulation) Act, 2021, totally prohibits commercial surrogacy and confines to altruistic surrogacy, narrowing the classes of intending parents, to protect the vulnerable women and children, as the State’s constitutional duty. Tracing the relationship between the Part III and IV of the Constitution of India, it shows that welfare objectives can legitimise restrictions on rights only within a structure of harmony, not hierarchy. This article argues that the Act exposes an unresolved tension between the protective ambitions of Directive Principles of State Policy and the individual liberties guaranteed by Fundamental Rights of the Constitution of India. Further, endeavours to reconstructs the welfare case for the statute through Articles 15(3), 23, 38, 39 and 42 and then examines the rights case against it under Articles 14, 19(1)(g) and 21, including claims of reproductive autonomy, equality and livelihood advanced by intending parents, excluded persons and surrogates themselves. Analysing the proportionality framework developed by judicial interpretations, it contends that the blanket prohibition of compensated surrogacy, together with marital, age and parity-based eligibility filters, struggles to satisfy the necessity and balancing stages, because less restrictive, surrogatecentred regulatory alternatives exist. Judicial developments, revealing a pattern of narrow, case-specific relief that avoids confronting the Act’s constitutional foundations. The article concludes by proposing a rights respecting welfare model that retains the protective purpose of State while reconfiguring the means by which the statute pursues it, so that protection of surrogates and children is secured without sacrificing dignity, equality and choice.
Keywords: Surrogacy, Reproductive Rights, Constitutional Harmony, Directive Principles of State Policy, Fundamental Rights, Welfare State.
- Introduction
Indian Constitution being a law of land has played a prominent role in interpretation of legislations through judicial interventions from time and again. While enactment of legislation on surrogacy and surrogacy jurisprudence in India, involves a several considerations of the rights and welfare perspectives which Constitution of India reflects through its provisions, furthering the dilemma and tug of the different provisions of the Constitution of India.[1]
In July 2008 a baby girl named Manji was born in Anand, Gujarat, to a surrogate mother, later the Japanese couple who had commissioned her pregnancy separated before the birth.[2] Within months, a German couple in Jan Balaz found that their twins, born to an Indian surrogate, were caught between two different legal systems and recognised by none.[3] Both cases revealed the market had flourished only with mere guidelines of the Indian Council of Medical Research, where commercial surrogacy had operated for decades without a statute, was a favoured destination for cross-border reproductive services, while the women who were surrogate mother with a child to the intending parents, many of them were poor and housed in clinic-run hostels, enjoyed no entitlement beyond what an agreement and a clinic chose to provide them.[4]
Indian parliament passed a Surrogacy (Regulation) Act, 2021, which came into force on 25 January 2022 as answer to the decades chaotic arrangements of surrogacy.[5] The Act prohibited commercial surrogacy and made it an offence, permitting only altruistic surrogacy and restricting access to legally married Indian couples, Indian widows and Indian divorcees within prescribed age bands, subject to medical certification and a series of further conditions.[6]Supporters of the legislation held a perspective as the realisation of the State’s constitutional duty to protect women from exploitation and children from commodification. While critics described it as a paternalistic statute that denies reproductive choice of many, closed a livelihood to many and substituted the State’s moral preferences against the autonomy of adults.[7]
The article endeavour to analysethe role of States on securing the vulnerablewith consequential question as when the State invokes Directive Principles of State Policy to restrict a right that Fundamental Rights protects! The analysis proceeds through reconstructing the constitutional relationship between the Fundamental Rights and Directive Principles of State Policy tracing the legislative path towards the SurrogacyAct, 2021 and the dimension of welfare case against it proposing proportionality as the doctrinal bridge and judicial interpretation approaching a reconciliatory model. The methodology is doctrinal, drawing on statutes, subordinate legislation, parliamentary, Law Commission materials and the case law of the Supreme Court and High Courts, supplemented by socio-legal relationship, where the constitutional argument depends. The article does not claim free-standing fundamental right to surrogacy, nor that the State may not regulate it rather claim that the means chosen by the Act must be justifiedand that the language of welfare does not exempt them from scrutiny.
[1] Subashna Tamnag, Assistant Professor of Law, Surendranath Law College.
[2]Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
[3]Jan Balaz v. Anand Municipality, AIR 2010 Guj 21.
[4]Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia University Press, 2014); Sharmila Rudrappa, Discounted Life: The Price of Global Surrogacy in India (NYU Press, 2015).
[5]The Surrogacy (Regulation) Act, 2021 (Act 47 of 2021) [hereinafter the Surrogacy Act].
[6]Id., ss. 2(1), 4 and 38.
[7]Rajya Sabha Secretariat, Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 (February 2020).