Introduction
The constitutional principle laid down in Article 21, incorporates within itself numerous facets, unavailability of which shall render to be an impediment in the full-fledged development of social beings like us. One such facet, found in the compendium of rights under Article 21 is the “Right to privacy”, arising out of the exhaustive explanation provided by the courts with regards to Article 21.
The “right of privacy” as a constitutionally protected right is not to be found in the express language of the Constitution of India[1]. However, the said right is recognized as a facet of Article 21 of the Constitution of India as interpreted by the courts in Kharak Singh v. State of Uttar Pradesh[2], and in Gobind v. Slate of Madhya Pradesh[3]. The right to privacy recognizes that all individuals have the right to safeguard the privacy of his or her own, family, marriage, procreation, motherhood, child bearing and education among many other matters[4].
The right to privacy is in itself a merger of several rights, one such indispensable right of this merger is the “Right to reproductive autonomy”. This right was amalgamated in the Indian jurisprudence after the case of B.K. Parthasarathi v. Government Of A.P. & Ors[5](hereinafter “B.K Parthasarthy case”), wherein it was stated that ‘the right of reproductive autonomy’ means the personal decisions of the individual about the birth and babies, and that, it is a facet of a ‘right of privacy.’
The decision to give birth is a decision to be made by the prospective mothers and State intrusion will only violate this right of those women, until there’s a compelling interest of the society, providing the necessary grounds for such intrusion. The intrusion of the State into such a decision-making process of the individual is scrutinized by the Constitutional Courts both in this country and in America with great care.
The Surrogacy Scenario
This right of reproductive autonomy, though incumbent to the present society of the contemporary era, can be seen to be clearly violated by the biased and archaic visions of the legislators, after the enactment of the Surrogacy (Regulation) Bill, 2016 (hereinafter “Bill”). Section 4(iii)(b) of the Bill proposes to lay down certain essential qualifications, without complying with which, a family cannot opt for surrogacy procedure as an option to beget children.
Provision (I) of Section 4(iii)(b) enunciates that the women who wish to participate in the surrogacy mechanism as a surrogate to the commissioning parents must be “an ever married woman.” The interpretation of this term should mean any woman who is, or was once, married. This Section is not only discriminatory and against the constitutional principles, but also lacks a nexus with the object of the legislation. This provision acts as a barring factor for unmarried women and restricts them completely from bearing child for someone else, in their capacity as a surrogate. This impinges upon their right to reproduce or procreate and is criticised by organisations working for the development of women in the Indian society.
Lalitha Kumaramangalam, the chairperson of the National Commission for Women, condemning the Bill, and making a recommendation to the health ministry, stated; “In the draft Bill [governing surrogacy], only married women are allowed to become surrogate mothers. But we felt this restricts the reproductive rights of single women. All single women, unmarried, divorced or separated, should be allowed to become surrogate mothers.”[6]
Denial of The Reciprocal Right – Abortion And Jurisprudence
In India, abortion is an emotionally charged topic having grave connections with people’s sentiments. Not only social, but the judicial standpoint on this topic is equally evasive of liberal philosophy. Section 312 of the Indian Penal Code renders abortion to be a criminal activity. Delhi High Court has ruled that provisions under section 312 can even apply to a pregnant woman herself who causes her own miscarriage.[7]
In the year 1971, as an exception to this particular Section, came into force the Medical Termination of Pregnancy Act (hereinafter “MTP Act”). Section 3 of the MTP Act makes the provision for the allowance of abortion of pregnancy in cases where the continuance of the same would cause “grave injury to mental or physical health.” The explanation to this provision provides that if the pregnancy results from the failure of any device or method of family planning, then that anguish thus caused would constitute “grave injury to mental health” for the purposes of the Act.
It is to be taken into consideration that this explanation applies only to married woman and unmarried woman cannot find solace under it.[8] This is a pertinent point to note which reveals the State’s inclination towards the suppression of reproductive autonomy of unmarried women. In the light of the B.K Parthasarthy case, which laid down that right to reproductive autonomy includes the right not to reproduce, the denial of opportunity to get an abortion to unmarried women is a clear display of infringement of their right to reproductive autonomy.
Conclusion
A brief examination of the legislative viewpoint of the country, with regard to the right of reproductive autonomy of unmarried women, reveals its notion of deep-rooted patriarchy. The Indian judiciary, recently, has been cognizant of the developing need of this right, given the dynamic shifts in the contemporary lifestyles as can be seen by the judgment of the Andhra Pradesh high court in B.K Parthasarthy case.
But the grounds of limitations put forward by the Surrogacy (Regulation) Bill, 2016 jostles the score back at square one. It is about time the legislative authorities stop turning a blind eye to the changes in the societal structure and set sight to enact a legal scenario where the cultural and moral differences are respectfully accepted, and do not act as a judging parameter in the legislative duty. Good governance for a great nation, because after all, “Salus populi suprema Lex esto”.
[1] B.K. Parthasarathi v. Government Of A.P. & Ors, AIR 2000 AP 156.
[2] 1963 AIR 1295.
[3] 1975 CriLJ 1111 ¶24.
[4] Ibid.
[5] AIR 2000 AP 156.
[6] Express News Service, Allow single women as surrogates, says National Commission for Women, (accessed through : http://indianexpress.com/article/india/india-news-india/allow-single-women-as-surrogates-says-ncw, accessed on 20/07/17).
[7] Dr. Meeru Bhatia Prasad v. State, 2002 CriLJ 1674.
[8] Simi Rose George, Reproductive Rights: A Comparative Study Of Constitutional Jurisprudence, Judicial Attitudes And State Policies In India And The U.S., 18(1) STUD. BAR REV. <Page no. 77>(2006).
By Rajarshi Singh, NUSRL, Ranchi