In the light of the recent Bombay High Court judgement permitting a surrogate mother right to terminate pregnancy, the issue of right of surrogate mothers to seek abortion assumes crucial significance which needs consideration.
At this juncture when the Surrogacy (Regulation) Bill 2016 is passed by Lok Sabha, the issue of abortion or termination of pregnancy under surrogate pregnancy brings forth unaddressed, contesting issues against the interest of surrogate mother which requires deliberation.
The Surrogacy Bill 2016 for the first time provided for addressing abortion with regard to surrogate pregnancy.
The Bill permits abortion for surrogate mothers after obtaining authorisation from appropriate authorities as per the prescribed conditions laid down or specified under the bill.
An underlying lacuna in this provision is that the right to seek abortion or medical termination of pregnancy which is a statutory right of every adult Indian woman subject to the prescribed time period mentioned under the Medical Termination of Pregnancy (MTP) Act 1971 in the interest of the health, survival of women.
Similarly, the Law Commission Report No. 228 of the year 2009 on surrogacy also recommends for the right of a surrogate mother to seek abortion in compliance with the MTP Act.
This right is vested in women to seek abortion as reproductive choices inhering in right to bodily autonomy, integrity which is a dimension of privacy, ‘personal liberty’ under Article 21 of the Constitution of India.
This right in favour of women is held in B K Parthasarathi vs Government of AP and Others (2000), Suchita Srivastava & Anr vs Chandigarh Administration (2009), the same has been established under American precedents namely Roe v. Wade (1973), in Maher v. Roe (1977), all these landmark judgements held that a woman has the right to choose to carry her foetus to term as to choose to abort it.
By adding this procedural compliance under the Surrogacy Bill of seeking authorisation from the appropriate authorities, the rationale for seeking such authorisation from appropriate authorities is unclear, in the light of settled legal position.
This pre-condition of authorisation indirectly takes away from the surrogate mother the right and then vests in the appropriate authorities. These conditions are in addition to the conditions prescribed under the MTP Act. This is arbitrary interference with the statutory right as well as reproductive choices privacy, personal liberty of women.
In crucial, life threatening cases requiring abortion to save the life of surrogate mother obtaining authorisation from appropriate authorities in all cases may not be pragmatic or workable, rather this may act as procedural hindrance that may act against the interest of surrogate mothers.
Further, the Surrogacy Bill 2016 prohibits forced abortion on the surrogate mother at any stage of surrogacy by any person, organisation, surrogacy clinic, laboratory or clinical establishment but the term forced abortion is not defined.
Pertaining to abortion, there are many unclear issues — if abortion of foetus done in order to avert multiple pregnancy, in order to safeguard the reproductive health of surrogate mother, would constitute forced abortion by doctors or otherwise and would it hold the doctor liable for the same.
The Bill does not provide any provision concerning multiple pregnancies or complications arising in the course of surrogate in pregnancy and the recourses for the same.
The Surrogacy Bill is far removed from protecting the reproductive health of surrogate mothers.
The author, Sonali Kusum, is Assistant Professor of Law at Tata Institute of Social Sciences (TISS), Mumbai. She has submitted her PhD thesis on Surrogacy and her views are included in the Parliamentary Standing Committee on Health & Family Welfare Report No. 102 on The Surrogacy (Regulation) Bill, 2016. She is also a member of the International Surrogacy Forum. You may write to her at firstname.lastname@example.org.