Recently, the draft Surrogacy Regulation Bill was approved by the Union Cabinet for it to be placed before Parliament in the forthcoming session. Among a host of provisions, the Bill imposes a blanket ban on the use of surrogacy technique by single parents. As per the Bill, only those married Indian couples are eligible to go for surrogacies who have been certified to be infertile and have been married for at least five years.
This provision of the Draft Bill imposing absolute prohibition on the use of surrogacy by single parents is discriminatory as per Art. 14 of the Indian Constitution which confers ‘Right to Equality’ upon persons living in India. This is because there is no reasonable basis for treating single parents differently in the present context.
Though the reasons for imposing a ban on singles have not been explained comprehensively, the government is likely to present four major arguments to justify the prohibition.
The State can first put forth the argument of public policy, thereby condemning surrogacy as an activity, and also the related argument that since a child born out of wedlock is illegitimate, a single parent cannot be permitted to go for surrogacy because a child so born would be born out of wedlock.
Further, the State can present the contention of the ‘welfare of the child born out of surrogacy’. This would mean that although for a single parent the right to procreate is an essential aspect of his life, surrogacy cannot be permitted because it is the State&’s responsibility to ensure that the welfare of the child is safeguarded. Children for their complete development require both parents, and therefore only a family comprising of two parents can provide a healthy environment for the growth of a child.
Furthermore, the State can contest that it is instability, be it emotional, financial or social, in the lives of a single individuals which undermines their ability to provide a healthy environment for growth and development of the surrogate child. The State may also put forth its apprehension that in case of single parents, there are greater chances of abandonment of child due to comparatively more unstable circumstances in the lives of single individuals. Additionally, the State&’s concern may be that if a single parent marries subsequently and has a family, the surrogate child might face discrimination.
However, all of these arguments can be countered.
The public policy argument is superficial for two reasons. One, though it may be agreed that surrogacy as an activity continues to be a subject matter of debate across the globe once the State legitimizes surrogacy as an activity, then specifically with respect to single individuals the argument of immoral nature of surrogacy techniques cannot be raised. Therefore, if the country&’s stance was to discourage surrogacy on grounds of morality, it should have banned it as France, Germany, Italy, Spain, Portugal and Bulgaria, etc have done. But if surrogacy is permitted, it should be permitted for single parents also.
The illegitimacy argument is defeated by provisions of the law. India permits married couples to opt for surrogacy even when the genetic material of only one parent is used. This implies that the Draft Bill has conferred legitimacy upon surrogate children conceived by combining the genetic components of one parent with those of a donor. Had such legitimacy not been conferred, they would also have been termed as illegitimate because they are also born ‘out of wedlock’. Therefore, if the Bill can confer legitimacy upon surrogate kids of married couples, it would be discriminatory if it treated surrogate children born to single parents as illegitimate merely because they are conceived outside wedlock.
The argument that a single parent cannot have a surrogate child because both parents are needed for proper development of the child is outdated. People who remained single were once considered inferior in terms of financial, emotional, physical or cognitive capacity. Today, the concept, notions and objectives of marriage are changing; marriage is only an option and not a matter of compulsion. Therefore, people who remain single are as well equipped as married people to act as parents. Traditional concepts of social division of labour – with men as providers and women as nurturers – are also changing. As a result, individuals are becoming self-sufficient and independent in all aspects.
The social stigma against a single parent is also melting down, making it possible for an individual to provide emotionally secure surroundings to a child. Hence, nowadays, a single parent can efficiently look after the needs of a child. In fact, several countries such as the UK, where single parents are discriminated against in matters of surrogacy, have identified that this discriminatory behavior against single parents is unjustified.
It has also been observed that most countries which discriminate against single parents in relation to surrogacy do not allow such parents to adopt a child as well. However since under Indian law, a single parent is permitted to adopt a child, there is no rationale for presuming that he cannot discharge his duties as a parent in case of a surrogate child. Furthermore, under Indian law, giving birth to a child by way of sexual intercourse outside wedlock is not an offence in itself. It is only that the child born out of such intercourse is not treated at par with the legitimate child and that too only on the grounds of public policy (i.e. to discourage sexual intercourse outside wedlock and to safeguard the monetary interests of the legitimate child). Therefore, there is no reason to deprive an individual from enjoying parenthood by way of surrogacy.
The concern that single individuals may not be emotionally, socially or economically stable and this may hinder the proper development of a child can be addressed by imposing additional regulations upon them. For instance, the law can increase the lower age limit for a single individual to have a surrogate child to ensure a degree of maturity and stability in the parent&’s life. The law could require the single parent to seek prior consent from the court . Given the possibility to incorporate such regulatory provisions in the surrogacy law, imposition of a blanket ban upon single individuals would be a ‘disproportionate measure’.
Additionally, there are singles such as divorcees or widows, who are not single by choice. To deprive such individuals who cannot have children by natural means would be unjust. Even UK&’s surrogacy law, which has been the inspiration for the Draft Surrogacy Bill in India, does not prohibit single parents from availing surrogacy. The UK law is discriminatory against single parents only to the extent that it does not permit such individuals to directly apply for parenthood of their surrogate child; they have to adopt such children. Resultantly, for all practical purposes under UK law, single parents can have surrogate children. Therefore, Indian law is far more discriminatory and unjust.
Furthermore, the law, by prohibiting single individuals from having surrogate children, not only discriminates between married and single individuals, but also discriminates between single individuals who can conceive a child outside wedlock by natural reproductive process and those who are incapable of doing so and hence need the aid of a surrogate mother.
The government&’s justification that single parents can adopt a child is not a sound one because adopting someone else&’s child and having a child who has a genetic relation to the single parent are two different options. One can never be a replacement for the other.
Therefore, it could be argued that the provision imposing ban on the use of surrogacy technology by single parents if it becomes the law could face the challenge of being unconstitutional in terms of Article 14. Thus, India should take a cue from countries such as the US and Canada and remove this discriminatory approach against single parents.
The writer is a third-year student of the West Bengal National University of Juridical Sciences, Kolkata.