The emerging laws relating Surrogacy: A procreational right for Single Parent, Transgenders and Foreigners

†“Freedom of thought, freedom of assembly, and the liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.” — John Stuart Mill

A. Introduction

This section provides an insight into the procreational right available to every individual. It outlines how the right to reproductive autonomy forms a part of the inalienable private right of every individual. The decision to create a new human being, as a member of one’s family may be as quintessential an aspect of personal liberties applied in the Constitution as the right to privacy. Free societies are characterised as protecting three essential liberties the first being freedom of thought, the second being freedom of assembly and the third being the liberty of tastes and pursuits. In this pretext we can examine the right to enjoy the fruits of the efforts by the fellow humans dealing with in vitro fertilisation and medical advancement to found a family without any obstruction that is unjustly imposed. The growth of individual rights acts as limitations and hindrances on what Governments can regulate and prohibit. J.S. Mill’s theory of 1859 applies even today to the prohibition and regulation imposed by the Government on the new ways of creating babies.[1] The right to create babies, to reproduce, to procreate has evolved due to the technological advances as in vitro fertilisation (IVF) or intracytoplasmic sperm injection (ICSI).[2] One of the forms of using IVF to procreate is through surrogacy with the help of a surrogate mother. The Black’s Law Dictionary defines surrogacy as “the process of carrying and delivering a child for another person”[3]. In the simplest of terms it is the act of having a child with the aid of another individual, with the help of advanced medical facilities. The word “surrogate” originates from the Latin word “surrogatus” past particle of “surrogare”, meaning a substitute, that is, a person appointed to act in the place of another. The advancement of IVF technology and the growth of IVF clinics across India has made it a spot for reproductive tourism.[4] There has been a tremendous growth of clinics across the country. We can also understand the concept of surrogacy in the mythological context. Surrogacy is not a new concept in the Indian society. Instances of surrogacy can be traced to the mythological surrogate mothers such as Yashoda and Gandhari. The primordial urge to have a biological child of one’s own DNA with the help of the advanced technology coupled with the commercial aspect provided by the ART clinics and allied services has resulted in the 5000 million dollar reproductive tourism industry in India.[5]

The Government has formulated various draft Bills to regulate surrogacy over the years in 2008, 2010, 2014 and latest draft is the current draft Bill: “Surrogacy (Regulation) Bill, 2016” (2016 Bill). The Indian Council of Medical Research Guidelines regulate the practice of surrogacy in the absence of any codified law.[6] The new Bill provides certain rules and restrictions on who can avail and who cannot avail surrogacy. The new Bill proposes a complete ban on commercial surrogacy, restricting ethical and altruistic surrogacy to legally wed infertile Indian couples only and who have been married for at least five years. It also creates a ban on the overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples from commissioning surrogacy. The ban imposed and the conditions and restrictions violates the provisions of the constitution under Article 14 which guarantees equality before law and equal protection of laws to all persons and Article 21 which guarantees protection of life and personal liberty of all persons.

(i) The right to procreation and reproductive autonomy as a fundamental right

The right to procreate and to found a family is a fundamental right. It is a part of the reproductive autonomy guaranteed to every individual. The procreative right can be looked at from two perspectives one containing the positive and the negative right to procreate and the other being the narrow and the broader right to procreate. The narrow procreative right, which is a negative or first generation right, is linked to a bundle of fundamental negative rights regarding bodily integrity. The broader procreative right which is positive or second generation right, is linked to economic and social rights (or entitlements) like rights to reproductive education and actual means to choose family size.

(a) Procreation: How defined

Black’s Law Dictionary defines procreation as the generation of children.[7] These rights are human rights and are universal, indivisible, and undeniable. These rights are founded upon principles of human dignity and equality, and have been enshrined in international human rights documents. Reproductive rights embrace a bundle of core human rights, including the right to health, the right to be free from discrimination, the right to privacy, the right not to be subjected to torture or ill-treatment, the right to determine the number and spacing of one’s children, and the right to be free from sexual violence.

(b) Established position of law fortifying “the reproductive right”

It is an established principle in law that the reproductive right of all persons is a basic human right. In B.K. Parthasarathi v. Govt. of A.P.[8], the Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” whilst agreeing with the decision of the US Supreme Court in Skinner v. State of Oklahoma[9], which characterised the right to reproduce as one of the basic civil rights of man. Further in R. Rajagopal v. State of T.N.[10] the Court held that the right to privacy is implicit in the right to life and liberty guaranteed to all persons by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. The personal decision of the individual about the birth of children is called “the right of reproductive autonomy”.

(ii) The right to privacy within the meaning of Article 21 encapsulates the right to parenthood

In Gobind v. State of M.P.[11] and Kharak Singh v. State of U.P.[12] the right to privacy has been identified as a constitutionally protected right, being a facet of Article 21 of the Constitution. The personal decision of a single person about the birth of a baby through surrogacy is called “the right of reproductive autonomy” which can be inferred to be a facet of the right of privacy guaranteed under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away. In the simplest of terms the right to commission surrogacy, to found a family, to procreate is a personal decision which cannot and should not have government intrusion in a democratic society.

The right to life under Article 21 of the Constitution of India includes “the right to motherhood” as held in Hema Vijay Menon v. State of Maharashtra.[13] Thus the Reproductive rights get constitutional protection. Reproductive rights include with it a wide range of rights, the right to abortion, the right to contraception, the right to have children. How an individual decides to use this right cannot, be intruded upon by the Government unless there is interference with another individual’s right.

The right to reproduction has many facets.[14] In one of the cases the Supreme Court has held that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. There is a need to recognize that reproductive choices are twofold it includes the right to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. The reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.

(iii) The right to parenthood is enshrined in various international instruments

The ICCPR and UDHR resonate the right to parenthood. The right to parenthood has been recognised in international law through various covenants and declarations such as the Universal Declaration of Human Rights, 1948 and International Covenant on Civil and Political Rights, 1966. The right to “found a family” established as available to all persons without any discrimination on the basis of race, nationality or religion. The law provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and that everyone has the right to the protection of the law against such interference or attacks. Further Article 23(1)(b) of the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 2006[15] entails the right to reproductive health and education. The reproductive rights is evident in its entrenchment in international law can be classified under four broad health-related categories viz. (i) the right to found a family; (ii) the right to decide the number and spacing of children; (iii) the right to family planning information and services; and (iv) the right to benefit from scientific advancement. The bundle of human rights provided in international law in various human right documents suggests the existence of a right to procreation and reproductive health.[16]

(iv) Comparative view of various judicial forums and legislations around the world

The right to procreate and the right of reproductive autonomy have been further elaborated upon in various jurisdictions. Under the right to privacy, individuals have the right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person’s decision whether to bear or beget a child. Further the Constitution places limits on the State’s right to interfere with person’s most basic decisions about family and parenthood, as well as bodily integrity.

The concept of reproductive rights first emerged in the Tehran Conference on Human Rights in 1968.[17] It recognised the “rights to decide freely and responsibility on the number and spacing of children and to have the access to the information, education and means to enable them to exercise these rights”.[18] Consequently in the Cairo Conference[19] reproductive rights were clearly laid down.[20] Even though the object of the conference was to address population issues it recognised that reproductive rights include both “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so and the right to attain the highest standard of sexual and reproductive health”.[21] These goals were reiterated at the United Nations, Fourth World Conference on Women. As set out in the Beijing Platform, the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Emphasis needs to be placed on reproductive health and the freedom of this health from discrimination. To decide who can and who cannot avail different modes to found a family on the basis of unreasonable classification is an abhorrent discrimination, which violates one of the most basic rights. Reproductive rights are increasingly recognised in international human rights law.[22]

(a) American jurisprudence

The right of reproductive autonomy extends to surrogacy, as has been observed by the California Supreme Court in Johnson v. Calvert[23] in holding that gestational surrogate has no parental rights to a child born to her since a gestational surrogacy contract is legal and enforceable and the intended mother is the natural mother under the Californian law. In Roe v. Wade[24], the Court had decided that every woman has the right to take a decision with respect to how her body is to be used, and therefore a woman has the right to enter into a contract of commercial surrogacy.

(b) Israeli law

The right to parenthood has been recognised by the Israeli courts as a fundamental constitutional right deriving from nature and the centrality of procreation in human life, as well as from the right to human dignity. In the case of New Family v. Approvals Committee for Surrogate Motherhood Agreements[25], Justice Cheshin describes the right to parenthood as “at the foundation of all foundations, at the infrastructure of all infrastructures, the existence of the human race, the ambition of man” and the basis of that right as “the profound need to have a child which burns in the soul … man’s instinct of survival … the necessity for continuity”. Thus, in the hierarchy of constitutional human rights, the right to parenthood and to family is very near the top, after the right to life and bodily integrity.

Finally, after an examination of all facets, the author will conclude with an open-ended question that is the subject-matter of a worldwide debate on this topic. Is the right to procreation alienable? Is the reproductive autonomy provided under various international instruments broad enough to include the right to use the fruits of medical technology to found a family?

B. Single parents

This section of the paper looks into the definition of “single parents” and who are included under the definition of single parents and further goes on to alienate and highlight the various provisions in the rules, Law Commission Report and draft Bills where the right of single parents has been recognised in various forms implicitly as well as explicitly.

Surrogacy for single parents has been prohibited in India under the Surrogacy (Regulation) Bill, 2016. The definition and scope of the umbrella term “single parents” needs to be examined and looked into to understand the complexities of the rights being violated by the current draft Bill of Surrogacy (Regulation) Bill, 2016. The term “single parents” includes within it divorced individuals/prospective parents both male and female, widowed individuals/prospective parents could be either male or female, single individuals/prospective parents who are not married and unmarried couples who may fall under the live-in relationship classification. The classification being drawn out by permitting married couples from commission surrogacy essentially falls down to married versus single parents i.e. unmarried persons. This classification solely on the basis of marriage is arbitrary and would not stand the test of reasonable classification under Article 14 of the Constitution. Especially when single parents i.e. non-married individual/parents are allowed to adopt children.

The mode of how an individual founds his family is a personal and private emanating from his right to privacy under Article 21. The object of granting this right solely to married couples and denying the same to single non-married citizens is violative of human rights. This particularly in the pretext when the term “single parent” includes those who could have lost a husband or a wife after several years of marriage and do not wish to get remarried but wish to have a child of their own through surrogacy or a single parent who could have been a divorce wanting to commission surrogacy to found their family.

(i) Surrogacy for single parents, unmarried couples through draft Bill Regulations and Law Commission Reports.

(a) Assisted Reproductive Technology, Guidelines, 1982

The reasoning that a single parent should be allowed to commission surrogacy is not new. The very first guidelines which recognised and aimed to regulate surrogacy, the Indian Council of Medical Research Guidelines of 2005 permitted single parents to commission surrogacy. They provided the following:

3.5.2. There would be no bar to the use of ART by a single woman who wishes to have a child, and no ART clinic may refuse to offer its services to the above, provided other criteria mentioned in this document are satisfied. The child thus born will have all the legal rights on the woman or the man.

The Guidelines not only allowed single woman to commission surrogacy but also created an obligation on part of the ART clinics not to discriminate against single woman and to provide them with the same services as being provided to the married couples.

(b) Legislative intent of the Law Commission of India

The Law Commission of India in its Report[26] in the recommendations provides:

4.1. (4) … In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

The Commission’s Report provides a safeguard to protect the interest of the child by providing a biological relation by making it compulsory for the commissioning parent to be a donor to be able to have the surrogate child. This safeguard clearly demonstrates the inclination of accepting single parenting as a new form of family life.

Another pertinent provision which needs to be looked at is the earlier draft[27] floated by the Ministry of Health and Family Welfare which under Section 32 of the proposed draft provided “Subject to provisions of this Act and the Rules and Regulations made thereunder, assisted reproductive technology shall be available to all persons including single parents, married couples and unmarried couples.” The Supreme Court has recognised lives-in relationships[28] as legal and hence it is imperative that the provision of “unmarried couples” being allowed to commission surrogacy be incorporated in the draft law. Specially in context of a time and age where not only are live in relationships recognized as being legal, rights are flowing and being granted for living relationships. The question which needs to be considered is what is the logical reasonable classification to prohibit surrogacy for live-in relationship couples? Pertinently when the same has been acknowledged and provided for in an earlier draft.

(ii) The adoption law in India

(a) Guardians and Wards Act, 1890

The Guardians and Wards Act, 1890 does not permit Muslims, Christians, Jews and Parsis to become a child’s adoptive parents. Even the Hindu Adoptions and Maintenance Act, 1956 does not allow non-Hindus to adopt a Hindu child. It is the Juvenile Justice (Care and Protection of Children) Act, 2000 which comes to the liberation of the non-Hindus. It is a secular law which allows courts to grant a child in adoption irrespective of religion or marital status if they meet the criteria and conditions. The adoption law has evolved with time and has been molded after several amendments to meet the needs of the society.

(b) Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Act provides:

“57. (3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the authority.”

The express recognition of single parents or a divorced person to adopt clearly indicates and shows that the lawmakers are aware of the distinct segregations within umbrella terms. Adoption law and surrogacy law both primarily aim at the same purpose “founding a family”. The surrogacy law needs to be drafted in such a manner that it complements the adoption law it cannot contradict and conflict the same.

The justification of restricting surrogacy to married couples because it cannot be regulated or that it would be exploitative towards the children commissioned from the surrogacy is a preposterous justification. It is a way of saying that the children born through surrogacy need more protection from single parents even though they have the DNA of the parent who has commissioned surrogacy over a child who is being adopted having possibly no biological link to the parent adopting the child.

(c) CARA regulations

The current adoption law through the Central Adoption Resource Authority model can be an example for formulating an agency for monitoring and regulating surrogacy law. Central Adoption Resource Authority — CARA[29] was established by the decision of the Supreme Court in Laksmi Kant Pandey case. The Court issued guidelines for adoption of children and provided a uniform mechanism for processing cases for inter-country adoption. Further the Juvenile Justice Act authorises State to recognise one or more of its institutions or voluntary organizations as specialised adoption agencies for placement of abandoned or surrendered children for permitting adoption in accordance with the guidelines notified by CARA.

The Law Commission Report also recognises that single parents should be allowed to commission surrogacy and adopt and that abuse of children takes place even in adoption, in fact through surrogacy the chances could be reduced due to the biological relationship.

(d) Views of the Supreme Court of India on adoption

The acceptance of single parenting can also be seen by the case of ABC v. State (NCT of Delhi)[30] where the Supreme Court allowed a single woman to maintain a sole petition to claim sole and exclusive guardianship of a child born outside wedlock and be entitled to a birth certificate of the child without the father’s name being disclosed. When the society is evolving and accepting the various family forms and breaking from traditional family forms it is essential that new laws be drafted in consonance with the society’s belief, regressive laws such as the current draft Bill will only restrain and hamper the growth of the society. It is the function of law to not be static, to be dynamic and to evolve with the society.

C. Rights of transgenders

Surrogacy provides an opportunity for those individuals who want to found a family however are unable to for certain reasons. Transgenders have been recognised as a third gender and the pending Transgender Persons Bill provides for equality for transgenders. In this section, the article discusses the legal obligations of the Government towards enacting a law on surrogacy which recognises their rights and does not exclude them from the same.

(i) Transgenders’ right of parenthood

(a) Definition of transgenders

Transgenders have been recognised as third genders by the Supreme Court of India in National Legal Services Authority v. Union of India.[31] There is a need to understand who are transgenders before discussing their rights. The Transgender Persons (Protection of Rights) Bill defines a transgender under Section 2(i) as:

“transgender person” means a person who is (A) neither wholly female nor wholly male; or (B) a combination of female or male; or (C) neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and genderqueers.

(b) Implications of the Surrogacy (Regulation) Bill

The Surrogacy (Regulation) Bill, 2016.—Surrogacy prohibits surrogacy for transgender in India. The Court also directed the Central Government and State Governments to take various steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their rights under Part III of the Constitution and other laws made by Parliament and the State Legislature. The Transgender Persons (Protection of Rights) Bill, is currently pending before the Ministry of the Social Justice and Empowerment which defines a transgender person and provides for prohibition for discrimination.

(ii) Analysis of landmark cases and Bills

The Supreme Court judgment in National Legal Services Authority[32] and the Transgender Persons (Protection of Rights) Bill indicate the mutually agreed inclination of the judiciary and legislature to recognise the rights of transgenders and to treat them at power as an equal gender of male and female. However this equal recognition can only be brought about by an amendment of certain laws and a need for drafting the new laws in accordance with their rights.

The current Surrogacy Draft (Regulation) Bill, 2016 creates a specific criteria, which is very narrow for commissioning surrogacy it would disentitle transgenders from commissioning surrogacy. It is violative of the rights of transgenders in every form starting from violation right to equality, right to privacy and right to reproductive autonomy, rights guaranteed by the Supreme Court in their judgment and the rights which would be granted under the Transgenders Bill if the Bill is passed and enacted into an Act.

(a) Expert Committee Report on the Issues relating to transgender persons Bill, 2014

The Bill fundamentally is a method to recognise the transgender community and to provide them with basic rights and prevent any form of discrimination or arbitrariness against them. The Report of the Expert Committee on the issues relating to transgender persons provides that: “The right to bodily autonomy and to decide freely the matters concerning their health and reproduction that is free of discrimination, coercion, violence and deceit” should also be provided to the transgender community.[33]

The Report read with Sections 3(d) and (e)[34] of the Transgender Persons Bill provides for a specific prohibition against any form of discrimination in healthcare and under any privilege or opportunity dedicated to the use of general public. An interpretation to these provisions could be the right of transgender to have equal access to medical fertility facilities to commission surrogacy which are available to the other members of the society. The reproductive autonomy as a right in theory is not sufficient if the individuals of a society are disabled to use the means to use facilities to bring into effect their reproductive autonomy.

(iii) Transgenders’ right is etched in the law of the land

The Constitution of India in all its expressions uses gender-neutral terms such as person, citizen, sex. This clearly shows the indication of the framers of our Constitution to provide for equality of those basic rights to every gender. Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.[35] Keeping in mind, the provisions of the Surrogacy (Regulation) Bill, 2016 are required to be given new and dynamic meaning with the inclusion of rights of transgenders as well.

D. Rights of foreigners

This section of the paper analyses the various provisons which point towards the need for a surrogacy law which is in tune with the provisions of the Indian Constitution and India’s obligations under General Agreement on Trade in Services (GATS). Surrogacy for foreigners has been prohibited in India under the Surrogacy (Regulation) Bill, 2016. The ban on foreign couples to enter into surrogacy arrangements denies the fruits of ART clinics on the basis of an artificial classification, which violates the most basic of the human rights to procreate. Article 14 of the Constitution of India guarantees equality before the law. The use of “any person” in the provision ensures that the benefit of Article 14 is not confined to citizens alone but is available to any person within the territory of India.[36]

(i) Classification under Article 14 is violative of the right of foreigners

Article 14 of the Constitution of India guarantees equal protection to all persons. The power of classification is only a judicial rider. As such, this power of classification should not be extended to such a length that it, in effect, subverts the precious guarantee of equality.[37] The Court has laid down two tests[38] which must be satisfied, in order that the classification made by a legislature be upheld by the Court as reasonable classification consonant with the guarantee of equal protection in Article 14:

(a) The classification must be founded on an intelligible differentia, which distinguishes persons, or things that are grouped together from others left out of this group.

(b) The differentia must have a rational relation to the object sought to be achieved by the statutes in question. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

Having ascertained the policy and the object of the Act, the Court should apply the dual test in examining its validity.[39] The two conditions required to be fulfilled in order to hold a classification reasonable are conjunctive in nature and must be satisfied together. When the classification is not found on any intelligible differentia, and has no nexus with the object to be achieved, the differentiation is invalid.[40] It was held that difference between Indian and European prisoners in the matter of treatment and diet violates Article 14.[41] The Law Commission Report of India in their conclusion and recommendation recognises that infertility as a medical condition is a huge impediment in the overall well-being of couples and needs to be addressed. It also recognises that prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.

The right to reproductive autonomy is a right which is inalienable and forms one of the most basic rights. Nationality cannot be a classification standard when dealing with basic inalienable human right conferred onto each individual by virtue of being a human. Further even if it is accepted that the classification is based on intelligible differentia, it is still essential that the classification forms a nexus with the object of the legislation. Assuming the object of the legislation even if is to prevent exploitation of surrogates, the provision does not serve any purpose, as it allows the practice of surrogacy to continue for people in India. It is a way of stating that Indians can exploit surrogates but foreigners cannot. Exploitation would continue, in spite of the provision. The solution to curbing exploitation and preventing child abuse is not to ban the practice and drive it underground but to regulate it so as to ensure that the surrogate mother is not exploited and can benefit from the surrogacy arrangement.

(ii) Reproductive tourism and obligation under GATS

The ban on commercial surrogacy for foreigners has been imposed after the practice of surrogacy has been going on for a period of 8 years starting from 2005 going on to 2012. The first time a restriction, was imposed was through the visa guidelines which restricted surrogacy to duly married foreign men and women with atleast a two-year marriage bond.[42] The next restriction was when the Ministry of Home Affairs issued guidelines which altered the type of visa required for visiting India for surrogacy. The new guideline provided that foreigners visiting India for surrogacy would have to apply for a medical visa instead of a tourist visa.[43] The new Surrogacy (Regulation) Bill, 2016 restricts surrogacy to Indian married couples and bans surrogacy for foreigners.

Reproductive tourism is a category of medical tourism. In medical tourism, patients travel outside their home jurisdictions in order to receive a wide variety of medical services.[44] The recognition of the Indian Ministry of Home Affairs as medical visa, medical tourism and reproductive tourism shows the acceptance the ministry has towards the business and service sector obligation the surrogacy agreements and arrangements hold.

India being a member of the World Trade Organisation (WTO), agreed to the General Agreement on Trade in Services, 1995[45]. The objectives of the GATS are:

(i) to create a credible and reliable system of international trade rules;

(ii) to ensure fair and equitable treatment of all participants (principle of non-discrimination);

(iii) to stimulate economic activity through guaranteed policy bindings; and

(iv) to promote trade and development through progressive liberalisation[46].

The GATS includes 12 service sectors[47]. India has made a special commitment[48] to ensure that market access to cross-border supply of hospital services, which is a sub-sector of “Health Related and Social Services”[49] is unbound or unlimited. At the global level, India has stressed on the central importance of the services sector for economic and social development and the need to help promote its expansion. It is also committed to proceed with liberalisation of services[50]. Moreover, it has also shown specific commitment towards developing and fostering the medical sub-sector of professional services, provision of healthcare services to people from other member countries and developing tourism as a whole[51]. Moreover, India has marketed itself as a market for medical tourism. To add to this, a special commitment exists on the side of the Government to allow unlimited access to market, with respect to cross-border supply of tourism services.

(iii) Adoption laws of foreigners

With the development of CARA the adoption law for foreigners has been made an actual option due to its transparency. Here has been revision of guidelines time and again in 2006, 2007, 2008, 2010, 2011 and 2015 to make the adoption procedure in tune with the society’s structure. A significant case, which demonstrates the same, is the case of Stephanie Joan Becker. Where a single 53-year-old lady was permitted to adopt a female orphan child by relaxing the rigor of the guidelines of CARA in the totality of facts of the case. The Supreme Court’s permission to grant the adoption rights to the foreigner who was a single parent shows the Supreme Court belief that a single parent is entitled to be a parent. The Central Adoption Resource Authority presence and implementation is a clear example of an operational model whereby foreigners are allowed to found a family by way of adoption. Laws need to complement each other, if the current surrogacy draft is not amended it would put forward a contradictory stand in law.

E. Conclusion: make this heading more interesting

Procreation is a natural biological process and generally takes place without any technological intervention and only requires minimum medical assistance. But in case of infertile and socially infertile couples, the process of procreation to beget a child would not occur without the intervention of science and technology. Thus the right to procreation includes a right to use ART. When it is an established principle that the right to reproduction, procreation is an inalienable human right the question which arises is why do divorced and single person form a separate classification who can adopt and not unmarried couples or transgenders? Further why are only married couples allowed to commission surrogacy and not divorced, single, widowed or even in live-in relationship couples? Especially when live-in relationships have been recognised by our own Supreme Court. The right to procreation and parenthood, is not within the domain of the State, and does not warrant interference of a fundamental right. Further the classifications being made are arbitrary and violative of the most basic of the human rights.

The rights of every man are diminished when the rights of one man are threatened.”  — John F. Kennedy

† Aparajita Amar is presently a 5th year student of BA, LLB (Hons.) at Amity Law School, Delhi (affiliated to Guru Gobind Singh Indraprastha University).

‡ Arjun Aggarwal is presently a 4th year student of BA, LLB (Hons.) at Amity Law School, Delhi (affiliated to Guru Gobind Singh Indraprastha University).

[1]  Gregory Pence, Deregulation and Decriminalising innovations in humans, p. 1.

[2]  Mazor, Emotional Reactions to Infertility, Infertility, 1984, pp. 27-29.

[3]  Black’s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529.

[4]  Anil Malhotra and Ranjit Malhotra, Surrogacy in IndiaA Law in the Making — Revisited, Universal Law Publishing 2016, p. 2.

[5]  Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making — Revisited, Universal Law Publishing 2016, p. 52.

[6]  Indian Council of Medical Research, Accreditation, Supervision and Regulation of Assisted Reproductive Technology, 2005.

[7]  Kimberly Mutcherson, Feel Like Making Babies? Mapping the Borders of the Right to Procreate in a Post-Coital World, p. 6.

[8]  1999 SCC OnLine AP 514 : AIR 2000 AP 156.

[9]  1942 SCC OnLine USSC 125 : 86 L Ed 1655 : 316 US 535 (1942).

[10]  (1994) 6 SCC 632 : AIR 1995 SC 264.

[11]  (1975) 2 SCC 148 : AIR 1975 SC 1378.

[12]  (1964) 1 SCR 332 : AIR 1963 SC 1295.

[13]  2015 SCC OnLine Bom 6127 : (2015) 5 AIR Bom R 370

[14]  Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 : AIR 2010 SC 235

[15]  The text was adopted by the United Nations General Assembly on 13-12-2006, and opened for signature on 30-3-2007. Following ratification by the 20th party, it came into force on 3-5-2008.

[16]  Chantelle Washenfelder, Regulating A Revolution: The Extent of Reproductive Rights in Canada, 44 Health Law Review, Vol. 12 No. 2, 44 (2004), p. 12.

[17]  Barbara Stark, Transnational Surrogacy and International Human Rights Law, pp. 8-9

[18]  Final Act of the International Conference on Human Rights, UN Doc. A/Conf. 32/41, at 3 (1968). See Reed Boland, The Environment, Population, and Women’s Human Rights, 27 ENVTL. L. 1137, 1158 (1997). Reproductive rights encompass a wide range of activities. These include surrogacy, other forms of assisted conception, female genital surgeries, and the health needs of women with HIV/AIDS.

[19]  World Conference on Population in 1994.

[20]  UN Population Information Network, Report of the ICPD, p. 1.12.

[21]  Report of Fourth World Conference on Women, Beijing, China, 4-9-1995, p. 96.

[22]  Ruth Dixon-Mueller, Population Policy & Women’s Rights: Transforming Reproductive Choice 128 (1993), p. 22

[23]  (1993) 5 Cal 4th 84.

[24]  1973 SCC OnLine USSC 20 : 35 L Ed 2d 147 : 410 U.S. 113 (1973).

[25]  HCJ 2458/01, 57(1) PD 419 (2002).

[26]  Government of India, Law Commission of India – Two Hundred and Twenty-Eighth Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, p. 26.

[27]  The Assisted reproductive Technology (Regulation) Bills and Rules, 2010 (ART Bill).

[28]  Tulsa v. Durghatiya, (2008) 4 SCC 520; S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

[29]  Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 : AIR 1984 SC 469.

[30]  (2015) 10 SCC 1.

[31]  (2014) 5 SCC 438.

[32]  (2014) 5 SCC 438.

[33]  Report of the Expert Committee on the Issues relating to Transgender Persons, 2014, Ms Kalki Subramaniam, Founder, Sahodari Foundation, p. 25.

[34]  S. 3(d) specifically prohibits “the denial or discontinuation of, or unfair treatment in, healthcare services;”

3(e) “the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public;”

[35]  National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[36]  Basheshar Nath v. CIT, AIR 1959 SC 149.

[37]  D.D. Basu, Vol. 2, p. 2171.

[38]  Budhan Choudhry v. State of Bihar, AIR 1955 SC 191.

[39]  Kangshari Haldar v. State of W.B., AIR 1960 SC 457.

[40]  Dimapati Sadasiva Reddi v. Osmania University, AIR 1967 SC 1305.

[41]  Madhu Limaye v. Supt., Tihar Jail, (1975) 1 SCC 525 : AIR 1975 SC 1505.

[42]  F.No. 25022/74/2011- F.I. dated 9-7-2012.

[43] F.No. 25022/74/2011-F.I. October 2013 Bureau of Immigration : Ministry of Home Affairs, Government of India, Immigration Visa Foreigners Registration and Tracking.

[44]  Annette B. Ramirez de Arellano, Patients Without Borders: The Emergence of Medical Tourism, p. 37 InT’L J. of Health Services 193 (2007).

[45]  General Agreement on Trade in Services, entered into force in January 1995, passim, 1869 U.N.T.S. 183, 33 I.L.M. 1167.

[46]  World Trade Organisation, The General Agreement on Trade in Services (GATS): Objectives, Coverage and disciplines.

[47] World Trade Organisation, Services Sectoral Classification List, published on 10-7-1991, MTN.GNS/W/120.

[48]  Department of Commerce, Ministry of Commerce and Industry, Government of India, INDIA— Schedule of Specific Commitments.

[49]  GATS, Art. XVI, p. 2.

[50] Trade Negotiations Committee, World Trade Organisation, on the Reports of Services Signalling Conference, at p. 1.

[51] Trade Negotiations Committee, World Trade Organisation, on the Report of Services Signalling Conference, p. 1.

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