SURROGACY BILL, 2016: CONSTITUTIONAL ANALYSIS UNDER ARTICLES 14 & 21

Abstract

Surrogacy, is the practice of inseminating the host, the Surrogate, with whom the contract is made to "rents" her womb so as the unborn child can be cultured in the surrogate mother. This practice is highly controversial due to Legal issues and Ethical and Social stigmas that surround surrogacy. Most countries have either highly regulated the practice or entirely ban it, there exists only a handful of countries such as Ukraine and Russia which allow for unregulated surrogacy. The position in India has dramatically changed form 2002 where commercial surrogacy was legalized to the 2016 Draft of the Artificial Reproductive Technology Bill (ART Bill), which seeks to put a permanent ban on commercial Surrogacy, this shift is in lieu of cases such 2008 Baby Manjii case and the exploitation of poor women in India, the government of India also seeks to curb the human trafficking problem which as gain considerable momentumii due to the practice of surrogacy in India. The draft of 2016 proposes to ban all forms of surrogacy, with the exception of infertile heterosexual couples who after five years of marriage are unable to have children can avail the services of an altruistic surrogacy, where the surrogate is a close relative. For the purpose of this article, focus of this paper will be on two folds, firstly the constitutional validity of the proposed bill and secondly the protection provided by the bill to the surrogate mother and child post birth. The focus of the paper will not however be the ethical and moral debate surrounding the issue nor will it be a comparative analysis of the bill with its international counterpart. This project will also not enter into the debate of, if surrogacy as commercial practice is valid, for this project the researcher will only analysis the current bill through the constitutional lenses.