Laws deal with the most fundamental concerns of human existence such as individual human rights, peace in society and the general stability of nations. They lay down the basic rights and duties of people so that society can flourish. As society changes, the law evolves and there is a need to introduce new laws and amend old ones. However, legislators enact new laws but sometimes ignore the impact of a new law on the other existing laws. Law continues to evolve over time. Some laws that were enacted a long time ago were not amended when new laws were introduced, which has serious implications for fundamental rights and the remedies to enforce them.
Over the years, society has undergone several changes and people have become more liberal in their thinking, which has led to a decrease in enthusiasm for marriage and people love to be independent and choose to be single or live in a relationship, and the fundamental rights of couples staying together in a living-in a relationship have been recognised by the Honorable Courts. On the other hand, these days due to development of science and technology the desire to become a mother or father without having a partner or even without having sexual intercourse is possible which necessitates the legislation of implementing and making rules and regulations for the use of such technology.
Surrogacy, also known as host or full surrogacy, was first achieved in April 1986. It takes place when an embryo created by in vitro fertilization (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy has several forms, and in each form the resulting child is not genetically related to the surrogate mother:
- The embryo is created using the intended father’s sperm and the intended mother’s eggs;
- The embryo is created using the intended father’s sperm and a donor egg;
- The embryo is created using the intended mother’s egg and donor sperm;
- A donor embryo is transferred to a surrogate.
Such an embryo may be available when others undergoing IVF have embryos left over, which they donate to others. The resulting child is genetically unrelated to the intended parent(s). It is clear, then, that surrogacy is an arrangement whereby a woman agrees to give birth for another person who will become the child’s parents after the birth.
Prior to 2021, there were no specific rules or laws on surrogacy. However, the Supreme Court’s judgment in Baby Manji Yamda v. Union of India recognised and legalized surrogacy, but did not raise the question of the legality of commercial surrogacy under Indian law. In order to ensure that women belonging to the poor section of society are not exploited, that is, to prevent this activity from becoming a fashion and luxury for some and exploitation for others, the government decided to enact a law.
There is no doubt that various bills have been drafted to regulate assisted reproductive technology and surrogacy, but these have either not been presented to the Houses of Parliament or have not been passed. Even the 228th Report of the Law Commission of India, headed by Dr. Justice A.R. Lakshmanan, has recommended banning commercial surrogacy and enacting appropriate legislation to allow altruistic surgeries that are ethical. When the bills were introduced, there were numerous petitions from single people, living-in couples and other affected people to have their rights considered.
At that time, when the Bill was still pending, the Hon’ble Courts directed the authorities to consider the applications filed by the parties concerned. In deciding some of the cases dealing with the rights of the parties involved in these proceedings, it was held that the legislature must consider and take into account the rights and obligations of the children resulting from these proceedings.
On 25 December 2021, the Surrogacy (Regulation) Act, 2021 finally received presidential assent. The main objective of this Act is to establish a National Assisted Reproductive Technology and Surrogacy Board, a State Assisted Reproductive Technology and Surrogacy Board and to appoint appropriate authorities to regulate the practise and process of surrogacy and for matters connected therewith or incidental thereto. However, the Act is silent on single parenthood.
The Surrogacy (Regulation) Act, 2021 sets out certain eligibility criteria for couples seeking surrogacy:
- The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
- A certificate of essentiality will be issued upon fulfillment of the following conditions:
- a certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
- an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
- insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
- The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
- the couple being Indian citizens and married for at least five years;
- between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and
- other conditions that may be specified by regulations.
A bare reading of the Act it has been made clear that only married couples can avail of surrogacy as per the procedure prescribed in the law after obtaining a certificate to that effect. The Act says nothing about whether these laws are retrospective or not. Since it is an established principle of law that laws that penalize someone are always prospective and have no retrospective effect until they are specifically mentioned, but since this law also has civil and fundamental rights implications for the person born before this law came into force, foreign embassies and judicial authorities are also in the dark about the implementation of the surrogacy laws and their implications, which is why they asked the petitioner no. 2 for a Court order, which has resulted in the petitioners having to apply for a court order to grant full rights to the child born through surrogacy.
There are two laws governing the rights and custody of children: ‘ The Guardian and Wards Act 1890’ and ‘The Hindu Minority and Guardianship Act, 1950’. The Guardian and Wards Act 1890 is a secular Act and the Hindu Minority and Guardianship Act is a supplementary Act, which means that it does not repeal, override or derogate from the provisions of the earlier Act but adds the provisions. The earlier Act governs guardianship appointed or declared by the court, while the later Act prescribes natural and testamentary guardianship. The earlier law is a secular law and applies to all communities and religions, while the later law applies only to Hindus.
As per Section 6 of Hindu Minority and Guardianship Act, 1956 father is a natural guardian and after him mother is natural Guardian.
Section 7 of the Guards and Wards Act, 1890, provides for the power of the court to order a guardianship if the court is satisfied that the welfare of the child requires it to appoint or declare a person to be the guardian of a child who is a third person of the child. Clarifies that the court has the power to appoint or declare a third person to be a guardian of a child where the best interests of the child are at stake and does not have the power to declare de facto or biological parents to be guardians. This view has also been held by many courts, and was held in the case of Smt. Seema Chauhan v. Raghuvendra Singh Raghav, the Allahabad High Court held that a natural guardian, like either of the parents, is fundamentally different from a guardian appointed or declared to be such under Section 7 of the Act and that a natural guardian does not fall within the category of Section 7.
Besides this, there is another provision, namely Section 25 of the Guardians and Wards Act, 1890, which gives the court the power to award custody of a child to the de facto or biological parent as guardian if there is a conflict between the biological parents or the child has been removed from either parent.