Surrogacy laws for overseas citizens need review
Married and un-married people cannot be treated as a class apart, particularly when inter-country or in-country adoptions are permitted under the gazetted Indian Adoption Regulations
The ministry of home affairs’ March 4 notification has created a dilemma for non-resident Indians hoping to become parents through adoption or surrogacy due to disparity in Indian laws.
NRIs have been equated to overseas citizens of India (OCIs) in matters of inter-country adoption. Gazetted Indian Adoption Regulations, 2017 (AR) treat NRIs at par with resident Indians when it comes to adopting an Indian citizen. Despite the Surrogacy (Regulation) Bill, 2020 proposing to allow surrogacy for OCIs, the March 4 notification makes no mention of the same.
Our constitution does not allow dual citizenship. Upon voluntary acquisition of the citizenship of another country, a person ceases to be an Indian citizen. A child born to foreign citizens of Indian origin cannot become a citizen of India, as neither parent is an Indian national. A new category of citizenship, OCI, was created in 2005, which gave overseas citizens limited privileges and no rights. The March 4 notification defines an OCI as a foreign national holding the passport of a foreign country and who is not a citizen of India.
Both the constitution and Citizenship Act (CA), categorically prohibit dual citizenship. CA specifically prohibits OCIs from having political and other rights. They have, however, been granted multiple entry life-long visa facility for visiting India for any purpose at any time. They are also exempted from registering with the Foreigners’ Registration Office or police authorities, for any length of stay in India and are entitled to benefits notified under CA by the Centre from time to time.
The 2018 judgment of the Supreme Court in Shafin Jahan Vs Asokan recognises the right to choose one’s life partner as an important facet of the right to life holding that social approval of intimate personal decisions should not be the basis for recognising them. A nine-judge bench of the Supreme Court in KS Puttaswamy held that a promise of a right of privacy is embedded in Article 21 of the Constitution. In Navtej Johar, Section 377 of the Indian Penal Code, which criminalised consensual homosexual relationships was read down and declared unconstitutional. The Supreme Court liberalised equality and equal protection of laws.
The AR permit any prospective adoptive parents, irrespective of marital status to adopt a child from India, except that a single male shall not adopt a girl child. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA) defines an NRI as an Indian passport holder residing abroad for more than a year. The AR equates an NRI with a resident Indian for adoption of Indian children. The March 4 notification grants parity to an OCI with an NRI in matters of inter-country adoptions. Equality prevails for achieving parenthood.
However, the ministry of health and family welfare debars single persons or unmarried couples from commissioning surrogacy in India. Under the Surrogacy (Regulation) Bill, 2020, surrogacy is proposed to be confined to only Indian married couples and commercial surrogacy has been declared illegal. All unmarried or single persons and foreigners, except OCIs, have been declared ineligible for surrogacy. There is no object for this classification with the purpose to be achieved. Married and un-married persons cannot be treated as a class apart, particularly when inter-country or in-country adoptions are permitted under the AR. There is no parity provided in the March 4 Notification to OCIs with NRIs in matter of surrogacy. Why the discrimination?
It may be argued that this unreasonable classification in surrogacy is violative of mandate of the constitution, discriminating against people on grounds of marital status, nationality and rights of procreation as they have no nexus with the object sought to be achieved. It directly curtails and interferes with ‘the right of reproductive autonomy, which is a facet of the ‘right of privacy’ under Article 21 of the constitution advocating the right to life. People, whether citizens, NRIs or OCIs cannot be treated differently in matters of parenthood whether to be achieved through surrogacy or adoption. No reason, justification, logic or explanation is forthcoming as to why single persons, unmarried couples or foreigners have been debarred and excluded from commissioning surrogacy in India when such people are allowed inter-country adoptions under the AR.
There cannot be different parameters for the same ultimate purpose of achieving parenthood, be it through surrogacy or by adoption. None of the grounds made out justify or validate this arbitrary exclusion and unfounded ineligibility of OCIs, who do not find mention in the March 4 notification. Moreover, the AR duly notified by the government of India and made under the JJA clearly stipulates the policy of permitting single parents irrespective of nationality or marital status to adopt a child of any gender with the only exception that a single male shall not be eligible to adopt a girl child.
The rational approach would be to control and coordinate by a selective screening process of checks and balances. A similar parallel exists in matters of adoptions. Central Adoption Resource Agency (CARA), a statutory body under the Juvenile Justice Act, functions smoothly to regulate all adoption matters. A regulated, defined and effective procedural mechanism rules out all possible unapproved adoptions. Law steps in to check but not to bar eligible persons from adopting children. Hence, a similar balanced approach in matters of surrogacy requires serious introspection. Surrogacy, in vogue for over a decade, cannot be stamped out of existence by law. Its practice ought to be regulated and coordinated without offending equality of law and equal protection of laws to all people and not only citizens in a democratic society.
The author, a practicing lawyer, has to his credit nine books pertaining to issues of private international law. He is the author of Surrogacy in India: A Law in The Making-Revisited. Views express are personal.
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