Surrogacy, Abortion: Two Contentious Issues Arising Out Of Reproductive Rights For Women In India

In June this year, the Supreme Court allo­wed an unmarried pregnant woman to get an abortion after being examined by the medical board of the All India Institute of Medical Sciences. The court wanted the woman, who was in the 24th week of her pregnancy, examined to determine whether the pregnancy could be safely terminated without endangering her life. The bench, headed by Justice D.Y. Chandrachud, observed that letting an unmarried woman suffer an unwanted pregnancy would be contrary to the spirit of the Medical Termination of Pregnancy (MTP) Act. The Apex Court observed that in the new MTP Act, amended in 2021, the word ‘husband’ has been replaced by ‘partner’, indicating the legislative intent to cover unmarried women.

The woman had challenged Rule 3B of the MTP Rules, 2003, which allows only some categories of women to seek termination of pregna­ncy between 20 to 24 weeks. Stating that it wou­ld be a restrictive interpretation of the MTP Act and Rules to limit the right of abortion exceeding 20 weeks to only married women, the bench observed that the petitioner should not be denied the benefit merely on the grounds that she is unmarried. The 25-year-old Mani­p­uri woman had told the court that the pregna­ncy was a result of a consensual relationship. She could not give birth to the child as her partner had refused to marry her.

In general terms, reproduct­ive rights include an individual’s right to plan a family, ter­minate a pregnancy, use contraceptives, receive sex education in public schools and gain access to reproductive health services. Though India was among the first countries in the world to develop legal and policy frameworks that guarant­eed access to abortion and cont­r­aception, there are imp­e­diments in women and girls exercising their complete reproductive rights.

Indian courts, however, are finally recognising the reproductive rights of women. Some of the jud­gments have been path-breaking. They und­e­r­l­ine the basic fact that reproductive rights of women are part of their inalienable survival rights, implicitly protected under the fundame­ntal right to life. The courts have recognised these rights as essential for women’s equality, and have stated that a woman’s right to autonomy and decision-making concerning pregna­ncy should be respected.

The debate on reproductive rights of women encompasses civil, political, economic and social rights. Any violation of these disproportionat­ely harms women. Two contenti­ous issues arising out of repro­duc­tive rights for women are surrogacy and abortion. By and large, though, recent progressive judgments by various courts have positively impacted women’s reproductive rights in India.

Surrogacy is a complex issue that raises multiple legal and ethical questions. It also poses questions on the definitions of parenthood and the custody of children born to surrogate mothers. Like the world over, in India too, there have been loud and vocal discourses on commodifying the reprodu­c­tive capacity of women.

Women living in abject poverty are more vulnerable to exploitation for commercial surrogacy. In the cases of Baby Manji Yamada vs. Union of India (2008) and the Jan Balaz vs Anand Municipality and Others (2009), the courts debated the statelessness of children born out of surrogacy.

Based on recommendations made by the Law Commission of India, the Union Cabinet appr­o­ved the Surrogacy (Regulation) Bill in 2016. This came into force as an Act in 2021. There is now a complete ban on commercial surrogacy, with health activists fearing that the practice may have gone underground. The ban is to protect the commercial exploitation of surrogate mothers and children born via this process. It allows only altruistic surrogacy, which encourages couples to look for relatives as surrogates. The surrogate mother must be a relative and can be a surrogate only once in her lifetime. The intending parents must be Indian, heterosexual, married for five years and must not have any surviving child, biologically or through adoption or surrogacy.

The Act excludes surrogacy for the LGBT­QIA+ community, live-in couples as well as single, divorced or widowed women, making it a punishable offence. While the Surrogacy (Reg­­u­­lation) Act, 2021 is the first legislation in India that controls surrogacy practices, it has raised concerns due to the gaps in it. “It is exclusionary and leaves much room for deliberation,” says Anindita Majumdar to Outlook.

She is a sociologist who has been working on reproductive health and infertility, and is a researcher on surrogacy. The privacy judgment has reignited the debate around abortion and surrogacy, two contending issues connected to the reproductive rights of women.

Majumdar feels the ban on commercial surrogacy has come into the conversation as a pro-woman law. “I will say ban the whole thing. Don’t have remnants of either—altruistic or exploitative. There has been a lot of research done on the subject globally. There are several perm­utations and combinations around surrogacy. It is positive, but certain areas need scrutiny,” says Majumdar.

The Himachal Pradesh high court, when granting maternity leave benefits to a woman who had got a child through surrogacy, had observed that it would be an insult to distinguish between a mother who begets a child through surrogacy and a natural mother. In its order, the court observed that motherh­ood never ends with the birth of a child, and a commissioning mother can’t be refused paid maternity leave. A woman can’t be discrimina­ted against as far as maternity benefits are concerned, only on the grounds that she has obta­ined the baby through surrogacy, observed the court.

In October 2021, the Union government bro­ught in new abortion rules, which recognise minors as a vulnerable category and has made med­ical services more accessible to them. The MTP Amendment Rules, 2021, brought in new categories of women within its ambit, including minors, survivors of sexual assault and those with foetal abnormalities, among others. “Many minors were approaching the courts to termin­ate pregnancies that were over 20 weeks. They are the third largest category after those with foetal abnormalities and survivors of rape. Min­ors who were pregnant when approaching the courts is a huge number,” says a health activist who wants to remain unnamed.

(This appeared in the print edition as "Of Yashoda, Devaki & Ganga")

Haima Deshpande in Mumbai