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About Nishka Kapoor

Nishka Kapoor is a second-year law student at NALSAR University of Law, Hyderabad, India. Her areas of interest are international law, human rights law and technology law.

Image description: Seven women sit on a panel in front of a banner entitled “National Consultation on Surrogacy Issues” in New Delhi, India

Recently, a petition challenging surrogacy laws in India  was filed in the Supreme Court. The petition challenged the arbitrary nature of these laws and their subsequent discriminatory impact. In particular, the Assisted Reproductive Technology (ART) (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 discriminate against oocyte donors and members of the LGBTQIA+ community, creating a restrictive regime which impedes their reproductive rights. The primary concerns related to these laws are the violation of donors’ privacy, the exclusion of LGBTQIA+ members and a blanket ban on commercial surrogacy.

The ART Act violates the primary rights of oocyte donors, who have a central role in surrogacy. Section 27(6) of the Act requires the provision of government-issued identity card, specifically the Aadhar card details of the donor, to assisted reproductive technology banks. However, as donors must be anonymous, mandating details of the Aadhar card breaches their right to privacy privacy under Article 21 of the Indian Constitution, as well as international human rights instruments including  Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of International Covenant on Civil and Political Rights (ICCPR). In Spain, as in India, surrogacy is altruistic, but the legislation protects the right to anonymity of the donor by only permitting the collection of the health information of the donor in case of a medical emergency; the identity of the donor is not recorded under any condition. Similarly, in the US, statutory requirements maintain the donor’s anonymity, though donors have the choice to reveal their identity voluntarily. India could also establish a similar kind of provision with reference to these frameworks, thus protecting the privacy rights of the donor.

The major flaw in the Surrogacy Act is the exclusion of the people belonging to the LGBTQIA+ community. The Act permits only heterosexual couples and single women to opt for surrogacy. This is a grave violation of the right to equality of LGBTQIA+ persons, protected under Article 14 of the Constitution. This also contradicts the landmark judgement in Navtej Singh Johar v Union of India, which decriminalised Section 377 and protected the rights of LGBTQIA+ citizens. The discrimination in the Surrogacy Act also violates numerous international human rights instruments, including Article 16 of the UDHR, which protects the right of an individual to marry and start a family, Article 17 of the ICCPR, which protects individuals’ privacy from state interference, and Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which recognises the universal right to parenthood.

Within India, commercial surrogacy is banned under the Surrogacy Act, which also prohibits granting monetary compensation to the surrogate and permits altruistic surrogacy. This blanket ban contravenes Suchita Srivastava v Chandigarh Administration which held that the right to make reproductive choice falls within the ambit of Article 21 of the Constitution. Overlooking the mental, physical, and emotional labour and medical expenses that a woman bears during and after the pregnancy, the ban on commercial surrogacy denies women the use of their reproductive ability for monetary gain. The 102nd report by the Parliamentary Standing Committee on Health and Family Welfare, 2016, recommended abolishing the ban on commercial surrogacy, instead advocating for adequate compensation for surrogates. Yet the Surrogacy Act overlooks this argument, as well as Article 23 of the UDHR and Article 7 of the ICESCR, which mandate a fair payment in exchange for human labour. For instance, although there are no laws on surrogacy in Georgia and Russia, commercial surrogacy is practised in recognition of the surrogates’ right to trade. India needs to enact equivalent provisions in order to protect those who work as surrogates.

As a way forward, statutory reforms should cater to the rights of the oocyte donors, as they play an integral role in the surrogacy process. The revealing of donors’ identity should be voluntarily permissible, and the bill must reflect the rights to equality and parenthood of members of the LGBTQIA+ community who wish to engage in surrogacy. Finally, it is critical that the provision for awarding compensation to surrogates be made in order to protect those vulnerable to exploitation.

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