†“Freedom of thought, freedom of assembly, and the liberty of tastes and pursuits; of framing the

plan of our life to suit our own character; of doing as we like, subject to such consequences as may
follow; without impediment from our fellow creatures, so long as what we do does not harm them,
even though they should think our conduct foolish, perverse, or wrong.” — John Stuart Mill

A. Introduction

This section provides an insight into the procreational right available to every individual. It outlines
how the right to reproductive autonomy forms a part of the inalienable private right of every
individual. The decision to create a new human being, as a member of one’s family may be as
quintessential an aspect of personal liberties applied in the Constitution as the right to privacy. Free
societies are characterised as protecting three essential liberties the first being freedom of thought,
the second being freedom of assembly and the third being the liberty of tastes and pursuits. In this
pretext we can examine the right to enjoy the fruits of the efforts by the fellow humans dealing with
in vitro fertilisation and medical advancement to found a family without any obstruction that is
unjustly imposed. The growth of individual rights acts as limitations and hindrances on what
Governments can regulate and prohibit. J.S. Mill’s theory of 1859 applies even today to the
prohibition and regulation imposed by the Government on the new ways of creating babies.[1] The
right to create babies, to reproduce, to procreate has evolved due to the technological advances as
in vitro fertilisation (IVF) or intracytoplasmic sperm injection (ICSI).[2] One of the forms of using IVF
to procreate is through surrogacy with the help of a surrogate mother. The Black’s Law Dictionary
defines surrogacy as “the process of carrying and delivering a child for another person”[3]. In the
simplest of terms it is the act of having a child with the aid of another individual, with the help of
advanced medical facilities. The word “surrogate” originates from the Latin word “surrogatus” past
particle of “surrogare”, meaning a substitute, that is, a person appointed to act in the place of
another. The advancement of IVF technology and the growth of IVF clinics across India has made it a
spot for reproductive tourism.[4] There has been a tremendous growth of clinics across the country.
We can also understand the concept of surrogacy in the mythological context. Surrogacy is not a
new concept in the Indian society. Instances of surrogacy can be traced to the mythological
surrogate mothers such as Yashoda and Gandhari. The primordial urge to have a biological child of
one’s own DNA with the help of the advanced technology coupled with the commercial aspect
provided by the ART clinics and allied services has resulted in the 5000 million dollar reproductive
tourism industry in India.[5]

The Government has formulated various draft Bills to regulate surrogacy over the years in 2008,
2010, 2014 and latest draft is the current draft Bill: “Surrogacy (Regulation) Bill, 2016” (2016 Bill).
The Indian Council of Medical Research Guidelines regulate the practice of surrogacy in the absence
of any codified law.[6] The new Bill provides certain rules and restrictions on who can avail and who
cannot avail surrogacy. The new Bill proposes a complete ban on commercial surrogacy, restricting
ethical and altruistic surrogacy to legally wed infertile Indian couples only and who have been
married for at least five years. It also creates a ban on the overseas Indians, foreigners, unmarried
couples, single parents, live-in partners and gay couples from commissioning surrogacy. The ban
imposed and the conditions and restrictions violates the provisions of the constitution under Article
14 which guarantees equality before law and equal protection of laws to all persons and Article 21
which guarantees protection of life and personal liberty of all persons.

(i) The right to procreation and reproductive autonomy as a fundamental right

The right to procreate and to found a family is a fundamental right. It is a part of the reproductive
autonomy guaranteed to every individual. The procreative right can be looked at from two
perspectives one containing the positive and the negative right to procreate and the other being the
narrow and the broader right to procreate. The narrow procreative right, which is a negative or first
generation right, is linked to a bundle of fundamental negative rights regarding bodily integrity. The
broader procreative right which is positive or second generation right, is linked to economic and
social rights (or entitlements) like rights to reproductive education and actual means to choose
family size.

(a) Procreation: How defined

Black’s Law Dictionary defines procreation as the generation of children.[7] These rights are human
rights and are universal, indivisible, and undeniable. These rights are founded upon principles of
human dignity and equality, and have been enshrined in international human rights documents.
Reproductive rights embrace a bundle of core human rights, including the right to health, the right
to be free from discrimination, the right to privacy, the right not to be subjected to torture or ill-
treatment, the right to determine the number and spacing of one’s children, and the right to be free
from sexual violence.

(b) Established position of law fortifying “the reproductive right”

It is an established principle in law that the reproductive right of all persons is a basic human right. In
B.K. Parthasarathi v. Govt. of A.P.[8], the Court upheld “the right of reproductive autonomy” of an
individual as a facet of his “right to privacy” whilst agreeing with the decision of the US Supreme
Court in Skinner v. State of Oklahoma[9], which characterised the right to reproduce as one of the
basic civil rights of man. Further in R. Rajagopal v. State of T.N.[10] the Court held that the right to
privacy is implicit in the right to life and liberty guaranteed to all persons by Article 21. It is a “right to
be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters. The personal decision
of the individual about the birth of children is called “the right of reproductive autonomy”.

(ii) The right to privacy within the meaning of Article 21 encapsulates the right to parenthood
In Gobind v. State of M.P.[11] and Kharak Singh v. State of U.P.[12] the right to privacy has been
identified as a constitutionally protected right, being a facet of Article 21 of the Constitution. The
personal decision of a single person about the birth of a baby through surrogacy is called “the right
of reproductive autonomy” which can be inferred to be a facet of the right of privacy guaranteed
under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free
from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or
beget a child through surrogacy cannot be taken away. In the simplest of terms the right to
commission surrogacy, to found a family, to procreate is a personal decision which cannot and
should not have government intrusion in a democratic society.

The right to life under Article 21 of the Constitution of India includes “the right to motherhood” as
held in Hema Vijay Menon v. State of Maharashtra.[13] Thus the Reproductive rights get
constitutional protection. Reproductive rights include with it a wide range of rights, the right to
abortion, the right to contraception, the right to have children. How an individual decides to use this
right cannot, be intruded upon by the Government unless there is interference with another
individual’s right.

The right to reproduction has many facets.[14] In one of the cases the Supreme Court has held that a
woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood
under Article 21 of the Constitution of India. There is a need to recognize that reproductive choices
are twofold it includes the right to procreate as well as to abstain from procreating. The crucial
consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.
The reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give
birth and to subsequently raise children.

(iii) The right to parenthood is enshrined in various international instruments

The ICCPR and UDHR resonate the right to parenthood. The right to parenthood has been recognised
in international law through various covenants and declarations such as the Universal Declaration of
Human Rights, 1948 and International Covenant on Civil and Political Rights, 1966. The right to
“found a family” established as available to all persons without any discrimination on the basis of
race, nationality or religion. The law provides that “No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on
his honour and reputation” and that everyone has the right to the protection of the law against such
interference or attacks. Further Article 23(1)(b) of the International Convention on the Protection
and Promotion of the Rights and Dignity of Persons with Disabilities, 2006[15] entails the right to
reproductive health and education. The reproductive rights is evident in its entrenchment in
international law can be classified under four broad health-related categories viz. (i) the right to
found a family; (ii) the right to decide the number and spacing of children; (iii) the right to family
planning information and services; and (iv) the right to benefit from scientific advancement. The
bundle of human rights provided in international law in various human right documents suggests the
existence of a right to procreation and reproductive health.[16]
(iv) Comparative view of various judicial forums and legislations around the world

The right to procreate and the right of reproductive autonomy have been further elaborated upon in
various jurisdictions. Under the right to privacy, individuals have the right to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person’s decision
whether to bear or beget a child. Further the Constitution places limits on the State’s right to
interfere with person’s most basic decisions about family and parenthood, as well as bodily integrity.

The concept of reproductive rights first emerged in the Tehran Conference on Human Rights in 1968.
[17] It recognised the “rights to decide freely and responsibility on the number and spacing of
children and to have the access to the information, education and means to enable them to exercise
these rights”.[18] Consequently in the Cairo Conference[19] reproductive rights were clearly laid
down.[20] Even though the object of the conference was to address population issues it recognised
that reproductive rights include both “the basic right of all couples and individuals to decide freely
and responsibly the number, spacing and timing of their children and to have the information and
means to do so and the right to attain the highest standard of sexual and reproductive health”.[21]
These goals were reiterated at the United Nations, Fourth World Conference on Women. As set out
in the Beijing Platform, the human rights of women include their right to have control over and
decide freely and responsibly on matters related to their sexuality, including sexual and reproductive
health, free of coercion, discrimination and violence. Emphasis needs to be placed on reproductive
health and the freedom of this health from discrimination. To decide who can and who cannot avail
different modes to found a family on the basis of unreasonable classification is an abhorrent
discrimination, which violates one of the most basic rights. Reproductive rights are increasingly
recognised in international human rights law.[22]

(a) American jurisprudence

The right of reproductive autonomy extends to surrogacy, as has been observed by the California
Supreme Court in Johnson v. Calvert[23] in holding that gestational surrogate has no parental rights
to a child born to her since a gestational surrogacy contract is legal and enforceable and the
intended mother is the natural mother under the Californian law. In Roe v. Wade[24], the Court had
decided that every woman has the right to take a decision with respect to how her body is to be
used, and therefore a woman has the right to enter into a contract of commercial surrogacy.

(b) Israeli law

The right to parenthood has been recognised by the Israeli courts as a fundamental constitutional
right deriving from nature and the centrality of procreation in human life, as well as from the right to
human dignity. In the case of New Family v. Approvals Committee for Surrogate Motherhood
Agreements[25], Justice Cheshin describes the right to parenthood as “at the foundation of all
foundations, at the infrastructure of all infrastructures, the existence of the human race, the
ambition of man” and the basis of that right as “the profound need to have a child which burns in
the soul … man’s instinct of survival … the necessity for continuity”. Thus, in the hierarchy of
constitutional human rights, the right to parenthood and to family is very near the top, after the
right to life and bodily integrity.

Finally, after an examination of all facets, the author will conclude with an open-ended question that
is the subject-matter of a worldwide debate on this topic. Is the right to procreation alienable? Is the
reproductive autonomy provided under various international instruments broad enough to include
the right to use the fruits of medical technology to found a family?

B. Single parents

This section of the paper looks into the definition of “single parents” and who are included under the
definition of single parents and further goes on to alienate and highlight the various provisions in the
rules, Law Commission Report and draft Bills where the right of single parents has been recognised
in various forms implicitly as well as explicitly.

Surrogacy for single parents has been prohibited in India under the Surrogacy (Regulation) Bill, 2016.
The definition and scope of the umbrella term “single parents” needs to be examined and looked
into to understand the complexities of the rights being violated by the current draft Bill of Surrogacy
(Regulation) Bill, 2016. The term “single parents” includes within it divorced individuals/prospective
parents both male and female, widowed individuals/prospective parents could be either male or
female, single individuals/prospective parents who are not married and unmarried couples who may
fall under the live-in relationship classification. The classification being drawn out by permitting
married couples from commission surrogacy essentially falls down to married versus single parents
i.e. unmarried persons. This classification solely on the basis of marriage is arbitrary and would not
stand the test of reasonable classification under Article 14 of the Constitution. Especially when single
parents i.e. non-married individual/parents are allowed to adopt children.

The mode of how an individual founds his family is a personal and private emanating from his right
to privacy under Article 21. The object of granting this right solely to married couples and denying
the same to single non-married citizens is violative of human rights. This particularly in the pretext
when the term “single parent” includes those who could have lost a husband or a wife after several
years of marriage and do not wish to get remarried but wish to have a child of their own through
surrogacy or a single parent who could have been a divorce wanting to commission surrogacy to
found their family.

(i) Surrogacy for single parents, unmarried couples through draft Bill Regulations and Law
Commission Reports.
(a) Assisted Reproductive Technology, Guidelines, 1982

The reasoning that a single parent should be allowed to commission surrogacy is not new. The very
first guidelines which recognised and aimed to regulate surrogacy, the Indian Council of Medical
Research Guidelines of 2005 permitted single parents to commission surrogacy. They provided the
following:

3.5.2. There would be no bar to the use of ART by a single woman who wishes to have a child, and
no ART clinic may refuse to offer its services to the above, provided other criteria mentioned in this
document are satisfied. The child thus born will have all the legal rights on the woman or the man.

The Guidelines not only allowed single woman to commission surrogacy but also created an
obligation on part of the ART clinics not to discriminate against single woman and to provide them
with the same services as being provided to the married couples.

(b) Legislative intent of the Law Commission of India

The Law Commission of India in its Report[26] in the recommendations provides:

4.1. (4) … In case the intended parent is single, he or she should be a donor to be able to have a
surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological
(natural) parents and adoptive parents are different.

The Commission’s Report provides a safeguard to protect the interest of the child by providing a
biological relation by making it compulsory for the commissioning parent to be a donor to be able to
have the surrogate child. This safeguard clearly demonstrates the inclination of accepting single
parenting as a new form of family life.

Another pertinent provision which needs to be looked at is the earlier draft[27] floated by the
Ministry of Health and Family Welfare which under Section 32 of the proposed draft provided
“Subject to provisions of this Act and the Rules and Regulations made thereunder, assisted
reproductive technology shall be available to all persons including single parents, married couples
and unmarried couples.” The Supreme Court has recognised lives-in relationships[28] as legal and
hence it is imperative that the provision of “unmarried couples” being allowed to commission
surrogacy be incorporated in the draft law. Specially in context of a time and age where not only are
live in relationships recognized as being legal, rights are flowing and being granted for living
relationships. The question which needs to be considered is what is the logical reasonable
classification to prohibit surrogacy for live-in relationship couples? Pertinently when the same has
been acknowledged and provided for in an earlier draft.
(ii) The adoption law in India

(a) Guardians and Wards Act, 1890

The Guardians and Wards Act, 1890 does not permit Muslims, Christians, Jews and Parsis to become
a child’s adoptive parents. Even the Hindu Adoptions and Maintenance Act, 1956 does not allow
non-Hindus to adopt a Hindu child. It is the Juvenile Justice (Care and Protection of Children) Act,
2000 which comes to the liberation of the non-Hindus. It is a secular law which allows courts to grant
a child in adoption irrespective of religion or marital status if they meet the criteria and conditions.
The adoption law has evolved with time and has been molded after several amendments to meet
the needs of the society.

(b) Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Act provides:

“57. (3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in
accordance with the provisions of adoption regulations framed by the authority.”

The express recognition of single parents or a divorced person to adopt clearly indicates and shows
that the lawmakers are aware of the distinct segregations within umbrella terms. Adoption law and
surrogacy law both primarily aim at the same purpose “founding a family”. The surrogacy law needs
to be drafted in such a manner that it complements the adoption law it cannot contradict and
conflict the same.

The justification of restricting surrogacy to married couples because it cannot be regulated or that it
would be exploitative towards the children commissioned from the surrogacy is a preposterous
justification. It is a way of saying that the children born through surrogacy need more protection
from single parents even though they have the DNA of the parent who has commissioned surrogacy
over a child who is being adopted having possibly no biological link to the parent adopting the child.

(c) CARA regulations

The current adoption law through the Central Adoption Resource Authority model can be an
example for formulating an agency for monitoring and regulating surrogacy law. Central Adoption
Resource Authority — CARA[29] was established by the decision of the Supreme Court in Laksmi
Kant Pandey case. The Court issued guidelines for adoption of children and provided a uniform
mechanism for processing cases for inter-country adoption. Further the Juvenile Justice Act
authorises State to recognise one or more of its institutions or voluntary organizations as specialised
adoption agencies for placement of abandoned or surrendered children for permitting adoption in
accordance with the guidelines notified by CARA.

The Law Commission Report also recognises that single parents should be allowed to commission
surrogacy and adopt and that abuse of children takes place even in adoption, in fact through
surrogacy the chances could be reduced due to the biological relationship.

(d) Views of the Supreme Court of India on adoption

The acceptance of single parenting can also be seen by the case of ABC v. State (NCT of Delhi)[30]
where the Supreme Court allowed a single woman to maintain a sole petition to claim sole and
exclusive guardianship of a child born outside wedlock and be entitled to a birth certificate of the
child without the father’s name being disclosed. When the society is evolving and accepting the
various family forms and breaking from traditional family forms it is essential that new laws be
drafted in consonance with the society’s belief, regressive laws such as the current draft Bill will only
restrain and hamper the growth of the society. It is the function of law to not be static, to be
dynamic and to evolve with the society.

C. Rights of transgenders

Surrogacy provides an opportunity for those individuals who want to found a family however are
unable to for certain reasons. Transgenders have been recognised as a third gender and the pending
Transgender Persons Bill provides for equality for transgenders. In this section, the article discusses
the legal obligations of the Government towards enacting a law on surrogacy which recognises their
rights and does not exclude them from the same.

(i) Transgenders’ right of parenthood

(a) Definition of transgenders

Transgenders have been recognised as third genders by the Supreme Court of India in National Legal
Services Authority v. Union of India.[31] There is a need to understand who are transgenders before
discussing their rights. The Transgender Persons (Protection of Rights) Bill defines a transgender
under Section 2(i) as:
“transgender person” means a person who is (A) neither wholly female nor wholly male; or (B) a
combination of female or male; or (C) neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth,
and includes trans-men and trans-women, persons with intersex variations and genderqueers.

(b) Implications of the Surrogacy (Regulation) Bill

The Surrogacy (Regulation) Bill, 2016.—Surrogacy prohibits surrogacy for transgender in India. The
Court also directed the Central Government and State Governments to take various steps for the
welfare of transgender community and to treat them as a third gender for the purpose of
safeguarding their rights under Part III of the Constitution and other laws made by Parliament and
the State Legislature. The Transgender Persons (Protection of Rights) Bill, is currently pending before
the Ministry of the Social Justice and Empowerment which defines a transgender person and
provides for prohibition for discrimination.

(ii) Analysis of landmark cases and Bills

The Supreme Court judgment in National Legal Services Authority[32] and the Transgender Persons
(Protection of Rights) Bill indicate the mutually agreed inclination of the judiciary and legislature to
recognise the rights of transgenders and to treat them at power as an equal gender of male and
female. However this equal recognition can only be brought about by an amendment of certain laws
and a need for drafting the new laws in accordance with their rights.

The current Surrogacy Draft (Regulation) Bill, 2016 creates a specific criteria, which is very narrow for
commissioning surrogacy it would disentitle transgenders from commissioning surrogacy. It is
violative of the rights of transgenders in every form starting from violation right to equality, right to
privacy and right to reproductive autonomy, rights guaranteed by the Supreme Court in their
judgment and the rights which would be granted under the Transgenders Bill if the Bill is passed and
enacted into an Act.

(a) Expert Committee Report on the Issues relating to transgender persons Bill, 2014

The Bill fundamentally is a method to recognise the transgender community and to provide them
with basic rights and prevent any form of discrimination or arbitrariness against them. The Report of
the Expert Committee on the issues relating to transgender persons provides that: “The right to
bodily autonomy and to decide freely the matters concerning their health and reproduction that is
free of discrimination, coercion, violence and deceit” should also be provided to the transgender
community.[33]
The Report read with Sections 3(d) and (e)[34] of the Transgender Persons Bill provides for a specific
prohibition against any form of discrimination in healthcare and under any privilege or opportunity
dedicated to the use of general public. An interpretation to these provisions could be the right of
transgender to have equal access to medical fertility facilities to commission surrogacy which are
available to the other members of the society. The reproductive autonomy as a right in theory is not
sufficient if the individuals of a society are disabled to use the means to use facilities to bring into
effect their reproductive autonomy.

(iii) Transgenders’ right is etched in the law of the land

The Constitution of India in all its expressions uses gender-neutral terms such as person, citizen, sex.
This clearly shows the indication of the framers of our Constitution to provide for equality of those
basic rights to every gender. Discrimination on the basis of sexual orientation or gender identity
includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed under our Constitution.
[35] Keeping in mind, the provisions of the Surrogacy (Regulation) Bill, 2016 are required to be given
new and dynamic meaning with the inclusion of rights of transgenders as well.

D. Rights of foreigners

This section of the paper analyses the various provisons which point towards the need for a
surrogacy law which is in tune with the provisions of the Indian Constitution and India’s obligations
under General Agreement on Trade in Services (GATS). Surrogacy for foreigners has been prohibited
in India under the Surrogacy (Regulation) Bill, 2016. The ban on foreign couples to enter into
surrogacy arrangements denies the fruits of ART clinics on the basis of an artificial classification,
which violates the most basic of the human rights to procreate. Article 14 of the Constitution of India
guarantees equality before the law. The use of “any person” in the provision ensures that the
benefit of Article 14 is not confined to citizens alone but is available to any person within the
territory of India.[36]

(i) Classification under Article 14 is violative of the right of foreigners

Article 14 of the Constitution of India guarantees equal protection to all persons. The power of
classification is only a judicial rider. As such, this power of classification should not be extended to
such a length that it, in effect, subverts the precious guarantee of equality.[37] The Court has laid
down two tests[38] which must be satisfied, in order that the classification made by a legislature be
upheld by the Court as reasonable classification consonant with the guarantee of equal protection in
Article 14:
(a) The classification must be founded on an intelligible differentia, which distinguishes persons, or
things that are grouped together from others left out of this group.

(b) The differentia must have a rational relation to the object sought to be achieved by the statutes
in question. What is necessary is that there must be a nexus between the basis of classification and
the object of the Act under consideration.

Having ascertained the policy and the object of the Act, the Court should apply the dual test in
examining its validity.[39] The two conditions required to be fulfilled in order to hold a classification
reasonable are conjunctive in nature and must be satisfied together. When the classification is not
found on any intelligible differentia, and has no nexus with the object to be achieved, the
differentiation is invalid.[40] It was held that difference between Indian and European prisoners in
the matter of treatment and diet violates Article 14.[41] The Law Commission Report of India in their
conclusion and recommendation recognises that infertility as a medical condition is a huge
impediment in the overall well-being of couples and needs to be addressed. It also recognises that
prohibition on vague moral grounds without a proper assessment of social ends and purposes which
surrogacy can serve would be irrational.

The right to reproductive autonomy is a right which is inalienable and forms one of the most basic
rights. Nationality cannot be a classification standard when dealing with basic inalienable human
right conferred onto each individual by virtue of being a human. Further even if it is accepted that
the classification is based on intelligible differentia, it is still essential that the classification forms a
nexus with the object of the legislation. Assuming the object of the legislation even if is to prevent
exploitation of surrogates, the provision does not serve any purpose, as it allows the practice of
surrogacy to continue for people in India. It is a way of stating that Indians can exploit surrogates but
foreigners cannot. Exploitation would continue, in spite of the provision. The solution to curbing
exploitation and preventing child abuse is not to ban the practice and drive it underground but to
regulate it so as to ensure that the surrogate mother is not exploited and can benefit from the
surrogacy arrangement.

(ii) Reproductive tourism and obligation under GATS

The ban on commercial surrogacy for foreigners has been imposed after the practice of surrogacy
has been going on for a period of 8 years starting from 2005 going on to 2012. The first time a
restriction, was imposed was through the visa guidelines which restricted surrogacy to duly married
foreign men and women with atleast a two-year marriage bond.[42] The next restriction was when
the Ministry of Home Affairs issued guidelines which altered the type of visa required for visiting
India for surrogacy. The new guideline provided that foreigners visiting India for surrogacy would
have to apply for a medical visa instead of a tourist visa.[43] The new Surrogacy (Regulation) Bill,
2016 restricts surrogacy to Indian married couples and bans surrogacy for foreigners.
Reproductive tourism is a category of medical tourism. In medical tourism, patients travel outside
their home jurisdictions in order to receive a wide variety of medical services.[44] The recognition of
the Indian Ministry of Home Affairs as medical visa, medical tourism and reproductive tourism shows
the acceptance the ministry has towards the business and service sector obligation the surrogacy
agreements and arrangements hold.

India being a member of the World Trade Organisation (WTO), agreed to the General Agreement on
Trade in Services, 1995[45]. The objectives of the GATS are:

(i) to create a credible and reliable system of international trade rules;

(ii) to ensure fair and equitable treatment of all participants (principle of non-discrimination);

(iii) to stimulate economic activity through guaranteed policy bindings; and

(iv) to promote trade and development through progressive liberalisation[46].

The GATS includes 12 service sectors[47]. India has made a special commitment[48] to ensure that
market access to cross-border supply of hospital services, which is a sub-sector of “Health Related
and Social Services”[49] is unbound or unlimited. At the global level, India has stressed on the
central importance of the services sector for economic and social development and the need to help
promote its expansion. It is also committed to proceed with liberalisation of services[50]. Moreover,
it has also shown specific commitment towards developing and fostering the medical sub-sector of
professional services, provision of healthcare services to people from other member countries and
developing tourism as a whole[51]. Moreover, India has marketed itself as a market for medical
tourism. To add to this, a special commitment exists on the side of the Government to allow
unlimited access to market, with respect to cross-border supply of tourism services.

(iii) Adoption laws of foreigners

With the development of CARA the adoption law for foreigners has been made an actual option due
to its transparency. Here has been revision of guidelines time and again in 2006, 2007, 2008, 2010,
2011 and 2015 to make the adoption procedure in tune with the society’s structure. A significant
case, which demonstrates the same, is the case of Stephanie Joan Becker. Where a single 53-year-
old lady was permitted to adopt a female orphan child by relaxing the rigor of the guidelines of CARA
in the totality of facts of the case. The Supreme Court’s permission to grant the adoption rights to
the foreigner who was a single parent shows the Supreme Court belief that a single parent is entitled
to be a parent. The Central Adoption Resource Authority presence and implementation is a clear
example of an operational model whereby foreigners are allowed to found a family by way of
adoption. Laws need to complement each other, if the current surrogacy draft is not amended it
would put forward a contradictory stand in law.

E. Conclusion: make this heading more interesting

Procreation is a natural biological process and generally takes place without any technological
intervention and only requires minimum medical assistance. But in case of infertile and socially
infertile couples, the process of procreation to beget a child would not occur without the
intervention of science and technology. Thus the right to procreation includes a right to use ART.
When it is an established principle that the right to reproduction, procreation is an inalienable
human right the question which arises is why do divorced and single person form a separate
classification who can adopt and not unmarried couples or transgenders? Further why are only
married couples allowed to commission surrogacy and not divorced, single, widowed or even in live-
in relationship couples? Especially when live-in relationships have been recognised by our own
Supreme Court. The right to procreation and parenthood, is not within the domain of the State, and
does not warrant interference of a fundamental right. Further the classifications being made are
arbitrary and violative of the most basic of the human rights.

“The rights of every man are diminished when the rights of one man are threatened.” — John F.
Kennedy

† Aparajita Amar is presently a 5th year student of BA, LLB (Hons.) at Amity Law School, Delhi
(affiliated to Guru Gobind Singh Indraprastha University).

‡ Arjun Aggarwal is presently a 4th year student of BA, LLB (Hons.) at Amity Law School, Delhi
(affiliated to Guru Gobind Singh Indraprastha University).

[1] Gregory Pence, Deregulation and Decriminalising innovations in humans, p. 1.

[2] Mazor, Emotional Reactions to Infertility, Infertility, 1984, pp. 27-29.

[3] Black’s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529.

[4] Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making — Revisited,
Universal Law Publishing 2016, p. 2.
[5] Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making — Revisited,
Universal Law Publishing 2016, p. 52.

[6] Indian Council of Medical Research, Accreditation, Supervision and Regulation of Assisted
Reproductive Technology, 2005.

[7] Kimberly Mutcherson, Feel Like Making Babies? Mapping the Borders of the Right to Procreate in
a Post-Coital World, p. 6.

[8] 1999 SCC OnLine AP 514 : AIR 2000 AP 156.

[9] 1942 SCC OnLine USSC 125 : 86 L Ed 1655 : 316 US 535 (1942).

[10] (1994) 6 SCC 632 : AIR 1995 SC 264.

[11] (1975) 2 SCC 148 : AIR 1975 SC 1378.

[12] (1964) 1 SCR 332 : AIR 1963 SC 1295.

[13] 2015 SCC OnLine Bom 6127 : (2015) 5 AIR Bom R 370

[14] Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 : AIR 2010 SC 235

[15] The text was adopted by the United Nations General Assembly on 13-12-2006, and opened for
signature on 30-3-2007. Following ratification by the 20th party, it came into force on 3-5-2008.

[16] Chantelle Washenfelder, Regulating A Revolution: The Extent of Reproductive Rights in Canada,
44 Health Law Review, Vol. 12 No. 2, 44 (2004), p. 12.

[17] Barbara Stark, Transnational Surrogacy and International Human Rights Law, pp. 8-9

[18] Final Act of the International Conference on Human Rights, UN Doc. A/Conf. 32/41, at 3 (1968).
See Reed Boland, The Environment, Population, and Women’s Human Rights, 27 ENVTL. L. 1137,
1158 (1997). Reproductive rights encompass a wide range of activities. These include surrogacy,
other forms of assisted conception, female genital surgeries, and the health needs of women with
HIV/AIDS.

[19] World Conference on Population in 1994.

[20] UN Population Information Network, Report of the ICPD, p. 1.12.

[21] Report of Fourth World Conference on Women, Beijing, China, 4-9-1995, p. 96.

[22] Ruth Dixon-Mueller, Population Policy & Women’s Rights: Transforming Reproductive Choice
128 (1993), p. 22

[23] (1993) 5 Cal 4th 84.

[24] 1973 SCC OnLine USSC 20 : 35 L Ed 2d 147 : 410 U.S. 113 (1973).

[25] HCJ 2458/01, 57(1) PD 419 (2002).

[26] Government of India, Law Commission of India – Two Hundred and Twenty-Eighth Report on
Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and
Obligations of Parties to a Surrogacy, p. 26.

[27] The Assisted reproductive Technology (Regulation) Bills and Rules, 2010 (ART Bill).

[28] Tulsa v. Durghatiya, (2008) 4 SCC 520; S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

[29] Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 : AIR 1984 SC 469.

[30] (2015) 10 SCC 1.

[31] (2014) 5 SCC 438.

[32] (2014) 5 SCC 438.

[33] Report of the Expert Committee on the Issues relating to Transgender Persons, 2014, Ms Kalki
Subramaniam, Founder, Sahodari Foundation, p. 25.

[34] S. 3(d) specifically prohibits “the denial or discontinuation of, or unfair treatment in, healthcare
services;”

3(e) “the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or
enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity
dedicated to the use of the general public or customarily available to the public;”

[35] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[36] Basheshar Nath v. CIT, AIR 1959 SC 149.

[37] D.D. Basu, Vol. 2, p. 2171.

[38] Budhan Choudhry v. State of Bihar, AIR 1955 SC 191.

[39] Kangshari Haldar v. State of W.B., AIR 1960 SC 457.

[40] Dimapati Sadasiva Reddi v. Osmania University, AIR 1967 SC 1305.

[41] Madhu Limaye v. Supt., Tihar Jail, (1975) 1 SCC 525 : AIR 1975 SC 1505.

[42] F.No. 25022/74/2011- F.I. dated 9-7-2012.

[43] F.No. 25022/74/2011-F.I. October 2013 Bureau of Immigration : Ministry of Home Affairs,
Government of India, Immigration Visa Foreigners Registration and Tracking.

[44] Annette B. Ramirez de Arellano, Patients Without Borders: The Emergence of Medical Tourism,
p. 37 InT’L J. of Health Services 193 (2007).
[45] General Agreement on Trade in Services, entered into force in January 1995, passim, 1869
U.N.T.S. 183, 33 I.L.M. 1167.

[46] World Trade Organisation, The General Agreement on Trade in Services (GATS): Objectives,
Coverage and disciplines.

[47] World Trade Organisation, Services Sectoral Classification List, published on 10-7-1991,
MTN.GNS/W/120.

[48] Department of Commerce, Ministry of Commerce and Industry, Government of India, INDIA—
Schedule of Specific Commitments.

[49] GATS, Art. XVI, p. 2.

[50] Trade Negotiations Committee, World Trade Organisation, on the Reports of Services Signalling
Conference, at p. 1.

[51] Trade Negotiations Committee, World Trade Organisation, on the Report of Services Signalling
Conference, p. 1.

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