4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
TEAM CODE:
ON SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF INCA
UNDER ARTICLE 32 OF THE CONSTITUTION OF INCA IN THE MATTERS OF:
MARIA AND OTHERS ……………………………………………………………..PETITIONER V.
UNION OF INCA AND OTHERS …………………………………………………..RESPONDENT
WRIT PETITION NO.___/2016
TC: 24
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................................................................v STATEMENT OF JURISDICTION......................................................................................ix STATEMENT OF FACTS.......................................................................................................x STATEMENT OF ISSUES.....................................................................................................xi SUMMARY OF PLEADINGS..............................................................................................xii WRITTEN PLEADINGS........................................................................................................1 1.
WHETHER THE WRIT PETITION FILED BY THE PLAINTIFF IS
MAINTAINABLE UNDER ARTICLE 32 OF THE INCAN CONSTITUTION...............1 1.1 THAT THERE ISNO EFFECTIVE ALTERNATIVE REMEDY THAT COULD HAVE BEEN AVAILED.......................................................................................................1 1.2 THAT THE PETITIONER HAS THE REQUISITE LOCUS STANDI TO APPROACH THE COURT................................................................................................2 1.3 THAT THE LAW PASSED BY INCA: ‘COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015’ CAN BE EXAMINED FOR ITS CONSTITUTIONALITY BY SUPREME COURT OF INCA........................................2 2.
THE
ACT
PASSED
BY
THE
GOVERNMENT
OF
INCA
IS
UNCONSTITUTIONAL AS IT INFRINGES THE RIGHT TO EQUALITY GUARANTEED UNDER ARTICLE 14............................................................................2 A). IT SHOULD NOT BE ARBITRARY, ARTIFICIAL OR EVASIVE. THE CLASSIFICATION
MUST
BE
FOUNDED
ON
AN
INTELLIGIBLE
DIFFERENTIA WHICH DISTINGUISHES PERSONS OR THINGS THAT ARE GROUPED TOGETHER FROM OTHERS LEFT OUT OF THE GROUP.................3 B). THE INTELLIGIBLE DIFFERENTIA BEING SINGLE WOMEN DOES NOT HOLD MAKING A DISTINCTION BETWEEN MARRIED WOMEN AND SINGLE WOMEN IS VIOLATING THEIR RIGHT TO EQUALITY...........................................4
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 2.1 THE HUMAN RIGHT OF MARIA TO BE A MOTHER IS BEING GROSSLY VIOLATED...........................................................................................................................4 2.3 THE DIFFERENTIA MUST HAVE A RATIONAL RELATION TO THE OBJECT SOUGHT TO BE ACHIEVED BY THE STATUTE IN QUESTION.................................4 2.4 THE ACT IS OPPOSED TO PUBLIC POLICY............................................................4 3. WHETHER THE ACT VIOLATES FUNDAMENTAL RIGHT UNDER ARTICLE 19(1)(g) OF THE CONSTITUTION OF INCA.....................................................................5 3.1 THE ACT IMPOSES UNREASONABLE RESTRICTIONS ON THE RIGHTS OF DOCTORS AND CLINICS...........................................................................................5 3.2
THE
ACT
IS
AGAINST
THE
LOGIC
OF
TECHNOLOGICAL
DEVELOPMENTS IN THE MEDICAL FIELD............................................................10 3.3 THE ACT IS IN CONTRAVENTION OF UNCHR..................................................11 4. WHETHER THE ACT VIOLATES RIGHT TO LIVELIHOOD OF A SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INCA.............12 4.1 SURROGACY UNDER THE FRAMEWORK OF INDIAN CONSTITUTION...12 4.2 RIGHT TO REPRODUCTIVE CHOICES COMES UNDER THE PURVIEW OF RIGHT TO PRIVACY.......................................................................................................14 5. WHETHER THERE SHOULD BE A COMPLETE BAN ON SURROGACY OR NOT.........................................................................................................................................16 5.1 SURROGACY AND ADOPTION- A RAY OF HOPE FOR THE UNBLESSED. .16 5.2 A “RIGHT TO PARENT” FOR GAY MEN..............................................................17 5.3VIOLATION OF ARTICLE 19 AND 21.....................................................................18 PRAYER................................................................................................................................xiv
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
LIST OF ABBREVIATIONS §
Section
¶
Paragraph
A.I.R.
All India Reporter
ALR
American Law Report
AMPAC
Association of Medical Practitioners of ART clinics
ART
Assisted Reproductive Technologies
Art.
Article
Commr.
Commissioner
Guj.
Gujarat
N.J.
New Jersey
Ors.
Others
Re
Reference
S.A.
South Africa
S.C.R.
Supreme Court Reporter
SC
Supreme Court
SCC
Supreme Court Cases
SCJ
Supreme Court Journal
UDHR
Universal Declaration Human Rights
US
United States
v.
Versus
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
INDEX OF AUTHORITIES CASES Abdul Hakim Quarishi v. State of Bihar, (1961) 2 S.C.R. 610..................................................1 B. K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A. P. 156.........................19 B.K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A.P. 156...........................15 Baby M, Re, 1988 N.J. 77 A.L.R.4th 1.....................................................................................17 Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84....................................................17 Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802..............................................7 Bhagwanti v. Union of India, (1989) 3 S.C.J. 361.....................................................................1 Board of Trustees of the Port of Bombay v. Dilipkumar Raghvendranath Nandkarni, A.I.R. 1983 S.C. 109.......................................................................................................................14 Buddhan Choudhary and ors. v. State of Bihar, A.I.R. 1955 S.C. 191......................................3 Central Inland Water Transport Corpn. Ltd.v.Brojo Nath Ganguly, A.I.R. 1986 S.C. 1571.....9 Central Inland Water transport ltd v. Brojo Nath Ganguly, A.I.R 1986 S.C. 1571...................5 Chintaman Rao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118..........................................7 Chintamanrao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118............................................1 Chiranjitlal v. Union of India, A.I.R. 1951 S.C. 41...................................................................2 Daryao v. State of Uttar Pradesh, A.I.R. 1861 S.C. 1457.........................................................1 Dr. Mrs. Hema Vijay Menon, v. State of Maharashtra, 2015 S.C.C. OnLine Bom. 6127.........5 E.P. Royappa v. State of Tamilnadu, A.I.R. 1974 S.C. 555........................................................3 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746.....13 Jack T. Skinner v. State of Oklahoma, 316 U.S. 535 (1942)....................................................16 Jack T. Skinner v. State of Oklahoma, 316 U.S. 535................................................................19 Jan Balaz v. Anand Municipality, A.I.R. 2010 Guj. 21............................................................18 Javed v. State of Haryana, (2003) 8 S.C.C. 369......................................................................16 Johnson v. Calvert, 5 Cal. 4th 84..............................................................................................8 Jyoti Pershad v. Administrator for the Union Territory of Delhi, A.I.R. 1961 S.C. 1602.........9 K. Thimmappa v. S.B.I., (2001) 2 S.C.C. 259.............................................................................4 K.K. Kochunni v. State of Madras, A.I.R. 1959 S.C. 725..........................................................2 Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, A.I.R. 1960 S.C. 1080.. 10, 19
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 Krishnasamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher Education, A.I.R. 2005 S.C. 2785..........................................................................................4 Laxmi Khandsari v. State of U.P., A.I.R. 1981 S.C. 873............................................................9 Lord Krishna Sugar Mills Ltd. v. Union of India, (1960) 1 S.C.R. 39.....................................10 M.R.F. Limited v. Inspector, Kerala Government, A.I.R. 1999 S.C. 188...................................7 M.R.F. Ltd. v. Inspector, Kerala Government, (1998) 8 S.C.C. 227 (233).................................6 M.S. Jayaraj v. Commr. Of Excise, (2000) 7 S.C.C. 552............................................................2 Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C. 1789..................................................11 Minister of Home Affairs v. Fourie, 2006 1 S.A. 524 (C.C.)...................................................18 Nagar Rice and Flour Mill Case, (1970) 1 S.C.C. 575.............................................................2 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180....................................14 P. Rathinam v. Union of India, (1994) 3 S.C.C. 394................................................................13 Pathuma v. State of Kerala, A.I.R. 1978 S.C. 771...................................................................10 Pathumma v. State of Kerala, (1978) 2 S.C.C. 1........................................................................9 People’s Union of Civil Liberties v. Union of India, (2013) 10 S.C.C. 1...................................2 R. Rajgopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632........................................................15 Ram Krishna Dalmia v. Justice Tendolkar, A.I.R. 1958 S.C. 538.............................................1 Roe v. Wade, 410 U.S. 113 (1973)............................................................................................16 S Khushboo v Kaniammal, (2010) 5 S.C.C. 600......................................................................16 Saghir Ahmad v. State of U.P., 1955 S.C.R. 707........................................................................8 Sodan Singh v. New Delhi Municipal Committee, (1989) 4 S.C.C. 155....................................6 State of Bombay v. United Motors, A.I.R. 1953 S.C. 252..........................................................1 State of Gujarat v. Maheshkumar Dhijarlal Thakkar, (1980) 2 S.C.C. 322..............................6 State of H.P. v. Umed Ram, A.I.R. 1986 S.C. 847....................................................................14 State of Kerala v. N.M. Thomas, (1977) 2 S.C.C. 310.........................................................6, 11 State of Maharashtra v. Himmatbhai Narbheram Rao, A.I.R. 1970 S.C. 1157.........................7 State of Uttar Pradesh v. Kaushaliya, A.I.R. 1964 S.C. 416...................................................10 State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284...............................................5 Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011..............................................................12 STATUTES Indian Constitution, 1950 art. 21..............................................................................................18 Indian Constitution, 1950 art. 51(c).........................................................................................12 Indian Constitution, 1950 art. 51A...........................................................................................11 7
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 Indian Contract Act, 1872 §23...................................................................................................9 The Juvenile Justice (Care and Protection of Children) Act, 2015 § 57..................................12 OTHER AUTHORITIES Amana Fontanella Khan, India, the Rent-a-Womb Capital of the World, Slate (Feb. 14, 2016), http://www.slate.com/articles/double_x/doublex/2010/08/india_the_rentawomb_capital_of _the_world.html...................................................................................................................16 Anne R. Dana, The State of Surrogacy Laws: Determining Legal parentage for Gay Fathers, 18 DUKE J. GENDER L. & POL’Y 353, 363 (2011)...............................................................17 Find Out the Reasons for Needing a Surrogate Mother, Laws.com (Feb. 9, 2016), http://children-laws.laws.com/surrogacy/surrogacy-mother/reasons-for-needing-one........15 G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (Dec. 10, 1948)...............................................18 Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation
of ART Clinics
in
India (2005)
(Feb. 26, 2016, 18:57 P.M.),
http://icmr.nic.in/art/art_clinics.htm...............................................................................13, 17 Jean M. Sera, Surrogacy and Prostitution: A Comparative Analysis, 5 JOURNAL
OF
GENDER
& THE LAW 315 (1997)........................................................................................................16 Law Commission of India, 228th Report on Legislation to Regulated Assisted Reproductive Technology Clinics as well As Rights and Obligations of Parties to a Surrogacy, (Feb. 17, 2016), http://lawcommissionofindia.nic.in/reports/report228.pdfat....................................18 Law Commission of India, 228th Report on Legislation to Regulated Assisted Reproductive Technology Clinics as well As Rights and Obligations of Parties to a Surrogacy, ¶1(Feb. 19, 2016), http://lawcommissionofindia.nic.in/reports/report228.pdfat..............................15 Mahendra P. Singh, Human Rights, Justice and Constitutional Empowerment 36 (C. Raj Kumar, K. Chockalingam ed., Oxford University Press 2007)............................................14 Smita Chandra, Surrogacy & India, Social Science Research Network (Feb. 18, 2016), http://ssrn.com/abstract=1762401........................................................................................17 TREATIES Universal Declaration of Human Rights, 1948 art. 16(1)........................................................19 Universal Declaration of Human Rights art. 23...................................................................7, 12 Universal Declaration of Human Rights art. 24.........................................................................7 Universal Declaration of Human Rights, 1948 art. 2.................................................................3
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 BOOKS Arvind P. Datar, Commentary on the Constitution of India 327 (2nd ed., Wadhwa Nagpur 2007)......................................................................................................................................6 Arvind P. Datar, Commentary on the Constitution of India 333 (2nd ed., Wadhwa Nagpur 2007)....................................................................................................................................10 D.D. Basu, Commentary on The Constitution of India 1397 (8th ed. Wadhwa and Company Law Publisher 2007)..............................................................................................................3 D.D. Basu, Commentary on The Constitution of India 3925 (8th ed. Wadhwa and Company Law Publisher 2007)..............................................................................................................1 D.D. Basu, Commentary on The Constitution of India 3789 (8th ed., Wadhwa and CompanyLaw Publisher 2007)...............................................................................................1 D.D. Basu, Shorter Constitution of India 598 (14th ed., LexisNexis Butterworths 2011)....1, 5 Mahendra P. Singh, Human Rights, Justice and Constitutional Empowerment 36 (C. Raj Kumar, K. Chockalingam ed., Oxford University Press 2007)............................................15 Mamta Rao, Constitutional Law 104 (1st ed. Eastern Book Publications 2013).......................3
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
STATEMENT OF JURISDICTION The petitioners humbly submit this memorandum for the petitions filed before the Hon’ble Supreme Court of Inca which have been clubbed for the hearing of this Honourable court of Inca. All the petitions filed are writ petitions filed under Article 32 of the Incan constitution. This memorandum sets forth the facts, contentions and arguments for the petitioners in the given case.
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
STATEMENT OF FACTS
1. John, a Christian, is a resident US citizen developed love with Maria, an Incan national, and a Hindu by religion. Both of them got married in Inca on January 01, 2009. Maria shifted to United States of America in 2010 and took up US citizenship in 2014.It was discovered that Maria would not be able to conceive a child. The couple wanted their own baby and so decided to opt for a surrogacy arrangement. 2. They entered into an agreement with Seema, a 25 year old house maid, mother of a four year old child, who agreed to act as the surrogate against the settled consideration and on usual terms and conditions. However, in November 2015, Inca passed a new law: ‘Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015’ which laid few provisions regarding the surrogacy arrangements. 3. In view of the above law, the XYZ ART Clinic refused to render services to John and Maria and Seema because John was foreign national and they had doubts about the eligibility of Seema to act as Surrogate. (ii) The Association of Medical Practitioners of ART Clinics (AMPAC) filed a petition challenging the Act as a violation of their (doctors and Clinics) fundamental right under Article 19 (1) (g) of the Constitution. (iii) The All Inca Mahila Samithi filed a writ petition challenging the Act as a violation of the right to livelihood guaranteed under Article 21 of the Constitution of Inca on the ground that Surrogacy arrangements with foreign nationals were no different than surrogacy which has been permitted. (iv) Single Women (Professional Surrogates) Association filed a writ petition challenging the provision which restricts the right of single woman to act as surrogate as a violation of ‘human right to be treated equally’ at par with married women in protecting their ‘right to reproduction’ and ‘right to be a parent’ and a ‘right to trade and profession'. v) The Association of Custodians of Traditional Ethics supports the new Law, and in addition requests a complete ban on surrogacy as it jeopardizes the health of the surrogate woman and the child; and infringes the right against exploitation. Even conceding surrogacy for Incan nationals, there is no justification for surrogacy arrangements for NRIs and PIOs.
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
STATEMENT OF ISSUES 1. WHETHER THE WRIT PETITION FILED BY MARIA IS MAINTAINABLE OR NOT UNDER ARTICLE 32 OF THE INCAN CONSTITUTION. 2. WHETHER THE WRIT PETITION FILED BY SINGLE WOMEN ASSOCIATION CHALLENGING THE PROVISION WHICH RESTRICTS THE RIGHT OF SINGLE WOMAN TO ACT AS SURROGATE IS IN VIOLATION OF ‘HUMAN RIGHT TO BE TREATED EQUALLY’OR NOT 3. WHETHER THE WRIT PETITION FILED BY AMPAC CHALLENGING THE ACT IS IN VIOLATION OF THEIR FUNDAMENTAL RIGHT UNDER ARTICLE 19(1)(g) OF THE CONSTITUTION OF INCA. 4. WHETHER THE ACT VIOLATES RIGHT TO LIVELIHOOD OF A SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INCA. 5. WHETHER THERE SHOULD BE A COMPLETE BAN ON SURROGACY OR NOT.
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SUMMARY OF PLEADINGS 1. THAT THE WRIT PETITION FILED BY PLAINTIFF IS MAINTAINABLE UNDER ARTICLE 32 OF INCAN CONSTITUTION AND THE ACT IS IN VIOLATION OF ARTICLE 14 OF INCAN CONSTITUTION. It is humbly submitted that the Writ-Petition filed under Article 32 is covered under the writ of mandamus. That there is no alternative remedy present in the given scenario. That the law passed by Inca: ‘Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015’ is a law under article 13(a) of the Incan constitution and that the supreme court of Inca has the right to strike down any law it wants. The act passed by the government of Inca is unconstitutional as infringes the right to equality guaranteed under article 14 and article 21 of the Incan constitution. It should not be arbitrary, artificial or evasive. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. The intelligible differentia being single women does not hold making a distinction between married women and single women is violating their right to equality. The human right of Maria to be a mother is being grossly violated the differentia must have a rational relation to the object sought to be achieved by the statute in question. Such a law is opposed public policy. 2.
THAT
THE
ACT
COMMERCIAL
SURROGACY
FOR
FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS A VIOLATION OF FUNDAMENTAL RIGHTS OF DOCTORS AND CLINICS UNDER ARTICLE 19(1)(g) OF THE CONSTITUTION. The Constitution of Inca provides for the Article 19(1)(g), which deals with the right to practise any profession, or to carry on any occupation, trade or business. The new ACT passed by the Government of Inca imposes unreasonable restriction as ‘Profession’ means an occupation carried on by person by virtue of personal and specialised qualification, training or skill. The word “occupation” has a wide meaning such as any regular work, profession, job, principal activity, employment, business or calling in which an individual is engaged. The objects of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through 13
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 which a man may earn his livelihood. Secondly, The Directive Principles of State Policy are guidelines or principles given to the central and state governments of India, to be kept in mind while framing laws and policies and the fundamental duties as envisaged in Part IVA must also be taken into consideration. Thirdly, the reasonableness of a restriction has to be determined in a manner and from the standpoint of interests of general public and not from the standpoints of interests of the persons upon whom the restriction is imposed. Lastly, the new act operates against Universal Declaration of Human Rights, 1948. 3.
THAT
THE
ACT
COMMERCIAL
SURROGACY
FOR
FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS A VIOLATION OF FUNDAMENTAL RIGHTS OF SURROGATE MOTHER UNDER ARTICLE 21 OF THE CONSTITUTION. It is humbly submitted that the right to livelihood of surrogates is being violated under Art.21 of the constitution of Inca. Under the Indian constitution, a surrogacy transaction can be recognized indirectly by interpreting certain constitutional provisions. One of the important interpretations with respect to Article 21 is that it is not merely ‘animal existence’, but includes all aspects of life which make it worth living. As opposed to the negative right of freedom from state interference, Article 21 has a ‘positive’ content encompassing the quality of life and the right to carry on such functions and activities as constitute the bare minimum expression of the human self. 4. THAT COMPLETE BAN ON SURROGACY IS AGAINST ARTICLE 19 AND 21 AND AGAINST THE TECHNOLOGICAL DEVELOPMENTS. Surrogacy is scientific boon using borrowed eggs, sperms or womb for childbearing for some unblessed couples. New reproductive technologies claim to help human beings through creative interventions that reduce suffering and have the potential to transform society. Supporting the ban on surrogacy will lead to despair of gay men. There should be laws to regulate the present conditions of surrogacy rather than putting a blanket ban on such a technological driven gift of medical science.
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016
WRITTEN PLEADINGS 1. WHETHER
THE WRIT PETITION
FILED
BY THE
PLAINTIFF IS
MAINTAINABLE UNDER ARTICLE 32 OF THE INCAN CONSTITUTION It is humbly submitted that the writ-petition filed under Article 32 is covered under the writ of mandamus.1 Remedy by means of a writ is guaranteed by the constitution for the enforcement of the fundamental rights and it becomes the duty of the court to issue the writ of mandamus where a fundamental right has been infringed or is threatened2 to be injured.3 The writ of mandamus may be issued under article 32 to cancel an order of an administrative or statutory public authority or the government itself where it violates a fundamental right, Art144 or to prevent the enforcement of a statute, affecting the petitioner, which offends against a fundamental right.5 1.1THAT THERE IS NO EFFECTIVE ALTERNATIVE REMEDY THAT COULD HAVE BEEN AVAILED. Article 32 is itself a fundamental right and therefore the existence of an alternative remedy is no bar to the Supreme Court entertaining a petition under article 32.Once the court is satisfied that the Petitioner’s fundamental right has been infringed, it is not only its right but also duty
1D.D. Basu, Commentary on The Constitution of India 3925 (8th ed. Wadhwa and Company Law Publisher 2007). 2State of Bombay v. United Motors, A.I.R. 1953 S.C. 252. 3D.D. Basu, Shorter Constitution of India 598 (14th ed. LexisNexis Butterworths 2011). 4Ram Krishna Dalmia v. Justice Tendolkar, A.I.R. 1958 S.C. 538; Bhagwanti v. Union of India, (1989) 3 S.C.J. 361. 5 Chintamanrao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118; Abdul Hakim Quarishi v. State of Bihar, (1961) 2 S.C.R. 610. 1
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 to afford relief to the petitioner6, and he need not establish either that he has no adequate remedy, or that he has exhausted all remedies provided by law, but has not obtained proper address. When the petitioner establishes infringement of his fundamental right, the court has no discretion but to issue an appropriate writ in his favour.7 Under Article 32, the Supreme Court enjoys a broad discretion in the matter of framing the writs to suit the exigencies of the particular case and it would not throw out the application of the petitioner simply on the ground that the proper writ has not been prayed for as seen in Chiranjitlal v. Union of India.8 The court’s power is not confined to issuing writs only: it can make any order including even a declaratory order, or give any direction, as may appear to it to be necessary to give proper relief to the petitioner9. Arguendo, the issue in hand is of fundamental importance 10 for the people of thewhole country as this ACT operates in the full territory. So, it would not be appropriate for the petitioner to go to each and every High Court and seek relief. 11 Therefore, it is humbly submitted that there is no appropriate alternative remedy available. 1.2 THAT THE PETITIONER HAS THE REQUISITE LOCUS STANDI TO APPROACH THE COURT It is further submitted that the petitioner has the locus standi as there has been a violation of their Fundamental Rights. Furthermore, the Supreme Court has shifted from the earliest writ interpretation of locus standi adopted in Nagar Rice and Flour Mill Case12and a much wider canvass has been adopted in the later years regarding a person’s entitlement to move to the 6 D.D. Basu, Commentary on The Constitution of India 3789 (8th ed. Wadhwa and Company Law Publisher 2007). 7 Daryao v. State of Uttar Pradesh, A.I.R. 1861 S.C. 1457. 8 Chiranjitlal v. Union of India, A.I.R. 1951 S.C. 41. 9 K.K. Kochunni v. State of Madras, A.I.R. 1959 S.C. 725. 10 People’s Union of Civil Liberties v. Union of India, (2013) 10 S.C.C. 1. 11 Id. 2
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 court involving writ jurisdiction.13 In the case at hand there has been a violation of their fundamental right to equality under article 14 and right to livelihood under article 21 of the Incan Constitution along with violation of Article 19(1) (g). 1.3 THAT THE LAW PASSED BY INCA: COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 CAN BE EXAMINED FOR ITS CONSTITUTIONALITY BY SUPREME COURT OF INCA. The law passed by Inca comes within the purview of Art.13 (3)(a) and hence it is justified for the Supreme Court to consider the law or even review it. That the act passed by Inca: ‘Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015’, comes within the ambit of Art. 13(2) as it is inconsistent with or in derogation of the fundamental rights. Thereby, Supreme Court is competent enough to strike down this ACT.
2.THE ACT PASSED BY THE GOVERNMENT OF INCA IS UNCONSTITUTIONAL AS IT INFRINGES THE RIGHT TO EQUALITY GUARANTEED UNDER ARTICLE 14 Article 14 states that “the state shall not deny to any persons equality before law or equal protection of laws within the territory of India”. In E.P. Royappa v. State of Tamil Nadu14, the court held that “If an act is arbitrary, it is unequal both according to political logic and Constitutional Law and therefore violates Article 14.” The right to equality as incorporated in Article 14 requires legislation for its operation so that equals may be treated equally and unequals may be treated differently. Rule of differentiation is inherent in the concept of equality.15The varying needs of different classes of persons 12 Nagar Rice and Flour Mill Case, (1970) 1 S.C.C. 575. 13 M.S. Jayaraj v. Commr. Of Excise, (2000) 7 S.C.C. 552. 14 E.P. Royappa v. State of Tamil Nadu, A.I.R. 1974 S.C. 555. 15D.D. Basu, Commentary on The Constitution of India 1397 (8th ed. Wadhwa and Company Law Publisher 2007). 3
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 require different treatment. It is a bad law if it arbitrarily selects one individual or class of individuals and visits a penalty upon the individual(s), so selected, if it is not imposed upon others guilty of like delinquency.16The ‘classification’ test was adopted which allowed for a classification between entities as long as it was based on an intelligible differentia and displayed a rational nexus with the ultimate objective of the policy.17 In order to pass the test of permissible classification, two conditions must be fulfilled: A). IT SHOULD NOT BE ARBITRARY, ARTIFICIAL OR EVASIVE. THE CLASSIFICATION MUST BE FOUNDED ON AN INTELLIGIBLE DIFFERENTIA WHICH
DISTINGUISHES
PERSONS
OR
THINGS
THAT ARE
GROUPED
TOGETHER FROM OTHERS LEFT OUT OF THE GROUP The act passed by the government of Inca is arbitrary and there is no rationale behind such classification. To classify foreign nationals as a separate group and deny them simply because of their nationality would lie in contravention to Article 2 of the Universal Declaration on Human Rights18 which states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”19 In this case, John’s right is being violated as he happens to be a foreign national. Also making such classification would have severe implications as Inca is a member of the UNO.
16Mamta Rao, Constitutional Law 104 (1st ed. Eastern Book Publications 2013). 17 Buddhan Choudhary and Ors. v. State of Bihar, A.I.R. (1955) S.C. 191. 18Universal Declaration of Human Rights, 1948 art. 2. 19 K. Thimmappa v. S.B.I., (2001) 2 S.C.C. 259. 4
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 B). THE INTELLIGIBLE DIFFERENTIA BEING SINGLE WOMEN DOES NOT HOLD MAKING A DISTINCTION BETWEEN MARRIED WOMEN AND SINGLE WOMEN IS VIOLATING THEIR RIGHT TO EQUALITY. “If two persons are similarly placed, then granting permission to one and denying it to another would entitle the aggrieved person to invoke Article 14”20. There is no special health risks posed by a single woman as compared to that a married woman. Hence having such a classification based on moral and psychological grounds are unjustified as no law can be made on morality. Therefore basing the law on such grounds is infringing the right of single women to be a surrogate and earn money from it. i. That PIOs and citizens cannot be grouped together There is no intelligible differentia to classify NRIs and PIOs in the same category as NRIs still have an interest in the country where they use to previously reside however PIOs who were of the country have no specific interest to return to their own country or are even considered a part of it. It has been contended by a federal government release that OCIs and PIOs will not enjoy the privilege of wearing the country’s colours at international sports event. If there is a differentiation that has been made here of PIOs and NRIs then the act clubbing the two categories is unreasonable. PIOs include the category of people who happen to be of Incan origin but may reside and continue to reside somewhere else. Allowing PIOs and not foreign nationals simply because of their nationality is unreasonable. As PIOs are not exactly citizens but are given the title of PIOs as they may have their ancestral property or that they had their ancestors previously residing in Inca. Hence there is no intelligible differentia 2.1THE HUMAN RIGHT OF MARIA TO BE A MOTHER IS BEING GROSSLY VIOLATED At an age of technological advancement where technology allows reproduction even though the couple may not be able to produce through surrogacy is significant. However, denying the people, in this case foreign nationals, right of parenthood not only prevents the optimal use of technological advancements but also denies the right of Maria to be a mother simply because of moral and ethical issues. It has been further contended that law cannot be issued simply on 20 Krishnasamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher Education, A.I.R. 2005 S.C. 2785. 5
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 moral and ethical grounds. Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child full development21. 2.2 THE DIFFERENTIA MUST HAVE A RATIONAL RELATION TO THE OBJECT SOUGHT TO BE ACHIEVED BY THE STATUTE IN QUESTION.22 There must be close nexus between the rational classification and the object that has been sought to be achieved. By banning foreign nationals the object that has been sought to be achieved will ultimately not prove to be useful as there will always be a possibility of unscrupulous persons who would seek to render the same service to foreign citizens through unauthorized clinic in isolated /hidden places. There might be a possibility that they could traffic women to foreign countries leading to exploitation of potential surrogate mothers and other implications. 2.3 ACT IS OPPOSED TO PUBLIC POLICY The act passed by the government of Inca is opposed to public policy 23 as it violates human rights. It restricts the rights of the single women to become surrogate and discriminates people who can avail the treatment of surrogacy based on nationality i.e. in this case foreign nationals who come to Inca to avail the treatment of surrogacy. 3. WHETHER THE ACT VIOLATES FUNDAMENTAL RIGHT UNDER ARTICLE 19(1)(g) OF THE CONSTITUTION OF INCA The petitioner humbly submits that the writ petition filed by AMPAC challenging the act ‘Commercial Surrogacy for foreigners (Miscellaneous) Act, 2015’ is violating right to Free trade and profession guaranteed under Article 19(1)(g) of the Constitution of Inca. 3.1 THE ACT IMPOSES UNREASONABLE RESTRICTIONS ON THE RIGHTS OF DOCTORS AND CLINICS. Article 19 (1) (g) of the Constitution, which states that: All citizens shall have the right(g) to practise any profession, or to carry on any occupation, trade or business. 21Dr. Mrs. Hema Vijay Menon, v. State of Maharashtra, 2015 S.C.C. OnLine Bom. 6127. 22 State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284. 23Central Inland Water transport ltd v. Brojo Nath Ganguly, A.I.R 1986 S.C. 1571. 6
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 ‘Profession’ means an occupation carried on by person by virtue of personal and specialised qualification, training or skill. The word “occupation” has a wide meaning such as any regular work, profession, job, principal activity, employment, business or calling in which an individual is engaged. The objects of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. 24 In a nutshell the guarantee takes into fold any activity carried on by a citizen to earn his living. 25 In the present case ART clinics provide medical treatments in a regulated, registered and supervised way and the fee they charge is the source of their livelihood, which the present Act is hindering. Moreover, In the case of State of Gujarat v. Mahesh Kumar Dhijarlal Thakkar26, it was said “Trade in the broadest sense, includes any business carried out with a view to earn profit.” As ART Clinics were carrying out their activity with view to gain certain profits, their conduct amounts to trade and hence right under Art 19(1)(g) is secured. Further, the law should be based on medical grounds and no other considerations should be allowed. On consideration of the catena of decisions on the point, the SC has laid certain texts on the basis of which reasonableness of the restriction, imposed on the exercise guaranteed under article 19(1)(g) can be tested27: (A) While considering the reasonableness of the restriction, the court has to keep in mind the directive principles of state policy.28
24Arvind P. Datar, Commentary on the Constitution of India 327 (2d ed. Wadhwa Nagpur 2007). 25 Sodan Singh v. New Delhi Municipal Committee, (1989) 4 S.C.C. 155. 26 State of Gujarat v. Mahesh KumarDhijarlal Thakkar, (1980) 2 S.C.C. 322. 27 M.R.F. Ltd. v. Inspector Kerala Government, (1998) 8 S.C.C. 227 (233). 28 State of Kerala v. N.M. Thomas, (1977) 2 S.C.C. 310. 7
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 The Directive Principles of State Policy are guidelines or principles given to the central and State governments of India, to be kept in mind while framing laws and policies. These provisions are contained in Part IV of the Constitution of India. Article 41 states that: Right to work, to education and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Though Directive Principles are unenforceable by the courts and courts cannot direct the legislation or executive to enforce them, once the legislation is passed in pursuance of them is passed, the Court can order the State to enforce the law, particularly when non enforcement of law leads to denial of a fundamental right.29 Moreover, the Right to Work is an important Human Right which has been explained in Articles 2330and 2431of the Universal Declaration of Human Rights. Everyone has the right to work and free choice of employment in just and favourable conditions. Since everyone has the right to be protected and that right to work is a directive principle, which must be kept in mind while placing a restriction and that if Inca passes such an Act, it would simply amount to unreasonable restriction on the rights of doctors and ART clinics to carry on their profession. B) Restriction must not be arbitrary or of an excessive nature so as to go beyond the requirement of interest of the general public. The phrase “in the interest of general public” has come to be considered in several decisions and it has been held that it would comprise within its ambit interests like public health and morals.32 In Chintaman Rao v. State of MP33and MRF Limited v. Inspector Kerala Government34, 29 Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802. 30 Universal Declaration of Human Rights, 1948 art. 23. 31 Universal Declaration of Human Rights, 1948 art. 24. 32 State of Maharashtra v. Himmatbhai Narbheram Rao, A.I.R. 1970 S.C. 1157. 8
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 “The phrase connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of public.” The word reasonable implies intelligent care and deliberation, that is, choice of a course which reason dictates. Legislation which arbitrarily invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between freedom guaranteed in article 19 (1) (g) and social control permitted by clause 6 of article 19, it must be held to be wanting in that quality. Since surrogacy is an opportunity, it gives infertile couples and surrogate mothers the possibility to fulfil their desires: a child and the opportunity to take better care of their family respectively, these clinics and doctors have the duty selecting the surrogate mothers and obtaining relevant information, informing all parties involved about their rights and obligations. Moreover, there are certified ART (Assisted Reproductive Technology) banks from where we get the surrogates and the whole process is properly documented. Instead of banning surrogacy for foreign nationals and depriving the ART clinics and the doctors of their rights, the government should regulate it and keep a check on the real culprits - the unsolicited agents and clinics, who are involved in malpractices. The fraternity should not suffer because of few people. The non-involvement of these doctors and medical clinics will lead to unhygienic scenario leading to deterioration of the health of surrogate mothers and their exploitation. Restricting medical facilities such as surrogacy would lead to people taking recourse to unsafe and even more exploitive methods, for example, historically when abortions were not legal in U.S., people took recourse to even more dangerous medically unproven methods (Black Alley Abortions). Hence we can see that impact of restricting technology can never be good. It is disastrous, not just because it will spell an end to the multi-crore industry, but because we are talking about the human lives which are at stake. Embryonic human lives, being gestated in the safe wombs of alternate mothers, could be in jeopardy if doctors and clinics act just as a mere body of regulation without charging any fee or commission. Moreover, the contracts entered by parties through the involvement of these ART clinics are a voluntary contract between human beings involving an exchange of money. Also, the Californian Supreme Court in Johnson v. Calvert35 extended the constitutional protection to
33Chintaman Rao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118. 34 M.R.F. Limited v. Inspector Kerala Government, A.I.R. 1999 S.C. 188. 9
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 surrogacy contracts and held them to be valid on the grounds of public policy as the surrogacy contracts involve free, informed and rational choice by; a woman to use her body. In Saghir Ahmad v. State of U.P.,36“The reasonableness of a restriction has to be determined in a manner and from the standpoint of interests of general public and not from the standpoints of interests of the persons upon whom the restriction is imposed” In this case, the interests of general public concerns the interests of surrogate mother and that of the commission parents, without the involvement of the doctors and art clinics the process would be difficult to do and that the chances of medical negligence would be high and the risk involvement would be so much that people will avoid this technique and will in turn would make it an anti-technology law, which again is a separate point of issue. In addition, in the case of Laxmi Khandsari v. State of U.P.,37it was held that “Whenever there is a restriction which allegedly violates Article 19(1)(g), the burden is there on those who seek protection under Article 19(6) and not the citizen who challenges the restriction as invalid.” Hence the government will have to prove that the legislation is valid and the onus upon the petitioners is just to show that their right under Art 19(1)(g) has been restricted and the restriction was prima facie unreasonable. Analysing according to contract law principles as well, it is uncertain as to whether commercial surrogacy arrangements can be interpreted to be “public policy” and hence unenforceable as per s. 23 of the Indian Contract Act, 1872 38. In case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly39, court stated that though the phrase, 35 Johnson v. Calvert, 5 Cal. 4th 84. 36 Saghir Ahmad v. State of U.P., 1955 S.C.R. 707. 37Laxmi Khandsari v. State of U.P., A.I.R. 1981 S.C. 873. 38 Indian Contract Act, 1872 §23. 39Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, A.I.R. 1986 S.C. 1571. 10
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 “opposed to public policy” is incapable of a precise definition, and it connotes some matter which concerns the public good and the public interest. Principles governing public policy are capable of modification and expansion. (C) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will from case to case as also with regard to changing conditions, values of human life, social philosophy of the constitution, prevailing conditions and the surrounding circumstances. In Pathumma v. State of Kerala40, it was held that: “In judging reasonableness of restriction, the court has to keep in mind the needs and the temper of the times and the standard of reasonableness will vary from time to time.” Moreover in case of: Jyoti Pershad v. Administrator for the Union Territory of Delhi41, It was held that: “Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.” Plus in case of - Lord Krishna Sugar Mills Ltd. v. Union of India42, it was held that “The reasonableness of the restriction is to be judged today and in the context of the circumstances existing.” In the present case it must be seen that surrogacy is not regarded as a big deal and cannot be said to unethical. Increased focus is being given on technology and science. Legislation must accommodate these changing values. As in the present case, these considerations were not taken into account; the legislation cannot be called reasonable. (D) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and object sought to be achieved. If there is a direct nexus between the
40 Pathumma v. State of Kerala, (1978) 2 S.C.C. 1. 41 Jyoti Pershad v. Administrator for the Union Territory of Delhi, A.I.R. 1961 S.C. 1602. 42 Lord Krishna Sugar Mills Ltd. v. Union of India, (1960) 1 S.C.R. 39. 11
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 restrictions and the object of the act, then strong presumption in the favour of the constitutionality of the act will naturally arise.43 In the present case saying that there are chances of exploitation of women would be improper, because such observations are extraneous and far-fetched. A restriction on farfetched grounds cannot be reasonable. (E) A just balance has to be struck between the restrictions imposed and social control envisaged by clause (6) of article 19(1)(g).44 Prevailing social values as also the social needs which are intended to be satisfied by restrictions have to be borne in mind45. In the case of Pathuma v. State of Kerela46: “The restriction must also take into account the prevailing social values whose needs are required to be satisfied and to protect social welfare” Social welfare here would consist of the welfare of surrogates and the child born. Doctors and Clinics involved would help in suggesting various recommendations for the protection and safety of the health of the child and mother. Moreover they will help in analysing and studying the medical issues related to the surrogates and commissioning parents. Plus, they will help in examining the existing social and health protection rights ensured to surrogate mothers. 3.2 THE ACT IS AGAINST THE LOGIC OF TECHNOLOGICAL DEVELOPMENTS IN THE MEDICAL FIELD In State of Kerela v. N.M. Thomas47, it was held, 43 Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, A.I.R. 1960 S.C. 1080. 44Arvind P. Datar, Commentary on the Constitution of India 333 (2d ed. Wadhwa Nagpur 2007). 45 State of Uttar Pradesh v. Kaushaliya, A.I.R. 1964 S.C. 416. 46 Pathuma v. State of Kerala, A.I.R. 1978 S.C. 771. 12
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 “In determining the constitutional validity of any statutory provision, the fundamental duties as envisaged in Part IVA must also be taken into consideration.” “Harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution48.” The Constitution of Inca provides fundamental duties in part IVA. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. One of the duties mentioned is that: It shall be the duty of every citizen of India: to develop the scientific temper, humanism and the spirit of inquiry and reform49. Technology is a way ahead law and so it is seen in surrogacy. Laws have not kept up with advances in technology. The gaps are getting wider as technology advances ever more rapidly. And that the new Act is antitechnology. Moreover, the new Act is not based on medical grounds and that it banned ART clinics from providing surrogacy treatment to foreign nationals is also a restriction on their right. Medical tourism plays a significant role in bringing foreign currency to the country. Moreover, these women were able to support their families with this money. According to doctors, the ban will lead to further exploitation of surrogates. The possible Government logic banning foreign surrogacy to prevent its misuse seems counter-productive. Allowing surrogacy for foreigners and Overseas Citizens of India does not in any manner commercialize surrogacy than what it already is. Surrogacy arrangement/agreement is a private transaction between two parties, the surrogate mother and the intended parents with the help of ART clinics. There is no need for a governmental interference thereby limiting the right of the parties to transact with one another. The proper approach would be to regulate the practice by a clear codified law in tandem with what has become a societal practice. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a place or clinics like the ART clinics to judge suitability of proposed surrogate parents rather than to debar all single or foreign persons. The recognition that inaction in the face of significant technologies may amount to making a decision co-exists with our appreciation, as observers of the law, that 47 State of Kerala v. N.M. Thomas, (1977) 2 S.C.C. 310. 48 Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C. 1789. 49 Indian Constitution, 1950 art. 51A. 13
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 premature, over-reaching or excessive law-making may, in some cases, be an option worse than doing nothing. It may places needless impediment upon local scientists and technologists, obliging them to take their laboratories and experiments offshore. Laws addressed to particular technology are overtaken and rendered irrelevant or even obstructive. Nowadays, scientific knowledge, technological inventions, and community values change radically in a very short space of time. Moreover, Surrogacy is considered by many to be no different to adoption, since the biological mother gives birth to the child but is raised by his/her social parents. Moreover, Section 57 of The Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act) 50 allows a court to give a child in adoption to foreign parents irrespective of the marital status of a person so this Act is in contravention to the Juvenile Justice Act. 3.3 THE ACT IS IN CONTRAVENTION OF UNCHR In Vishaka v. State of Rajasthan51, the Court held that “Any international Convention not inconsistent with the fundamental right and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote object of constitutional guarantee.” Internationally, the right to work and the right to just and favourable remuneration have been protected in a number of conventions. For Instance, Article 23 of UDHR provides that: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family and……..protection.”52 The UDHR protects any arbitrary interference from the State to a person’s right to work and earn remuneration. Moreover, Article 6 of International Covenant on Economic, Social and Cultural Rights says:“1. The States Parties to the present Covenant recognize the right to work, which 50 The Juvenile Justice (Care and Protection of Children) Act, 2015 § 57. 51 Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011. 52 Universal Declaration of Human Rights, 1948 art. 23. 14
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.” Inca is now a signatory to this Covenant and Article 51(c) of the Constitution 53 obligates the state to “foster respect for international and treaty obligation in the dealings of organised people with one another.” This protects the arbitrary interference from State to a person’s right to work and earn remuneration. 4. WHETHER THE ACT VIOLATES RIGHT TO LIVELIHOOD OF A SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INCA The petitioner humbly submits that the writ petition filed by All Inca MahilaSamithi challenging the act :‘Commercial Surrogacy for foreigners (Miscellaneous) Act, 2015’ is violating right to livelihood of surrogates guaranteed under Article 21 of the Incan constitution. Excluding foreign nationals denies higher remuneration to surrogates and affects their right to livelihood. 4.1 SURROGACY UNDER THE FRAMEWORK OF INDIAN CONSTITUTION The ICMR defines surrogacy as “….an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate.54Under the Indian constitution, a surrogacy transaction can be recognized indirectly by interpreting certain constitutional provisions. One of the important interpretations with respect to Article 21 is that it is not merely ‘animal existence’ 55, but includes all aspects of life which make it worth living. 56As opposed to the negative right of 53 Indian Constitution, 1950 art. 51(c). 54Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005), I.C.M.R.(Feb. 26, 2016, 18:57 P.M.), http://icmr.nic.in/art/art_clinics.htm. 55 P. Rathinam v. Union of India, (1994) 3 S.C.C. 394. 56 Id. 15
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 freedom from state interference, Article 21 has a ‘positive’ content encompassing the quality of life and the right to carry on such functions and activities as constitute the bare minimum expression of the human self.57 It is a matter of light for those women who are striving to meet their livelihood concerns and hence, an obligation on the state to recognize or provide a legal validity to surrogacy so that surrogates can legally opt for it to meet their financial and economic concerns. In fact, the state has a constitutional obligation to ensure the livelihood of its citizens, by creating or opening new avenues which may provide them with an opportunity to feed themselves. 58 The expression ‘right to life’ under article 21 includes ‘right to livelihood’ 59 and ‘right to access resources of livelihood60 as fundamental rights. Hence the state is under an obligation to make suitable arrangements or to recognize those techniques that can provide an opportunity to infertile couples and those who are otherwise unable to have their own genetically or biologically related child. This acts a blessing even to gay couples as they will not be able to have their own offspring. In defining the word ‘life’ in Article 21 in a broad and expansive manner, the court, in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghvendra nath Nandkarni 61, held that “the right to life” guaranteed by article 21 includes “the right to livelihood”. The Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation 62popularly known as the “Pavement Dwellers Case”, a five judge bench of the Court now implied that
57 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746. 58 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180. 59 Id. 60 State of H.P. v. Umed Ram, A.I.R. 1986 S.C. 847. 61 Board of Trustees of the Port of Bombay v. Dilipkumar Raghvendranath Nandkarni, A.I.R. 1983 S.C. 109. 62 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180. 16
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. The court in this case observed that: “The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean, merely that life cannot ………..........................except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.” If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. In the case at hand, putting a ban on surrogacy arrangements with foreign nationals is unreasonable and unconscionable since foreign nationals are no different from the Incan nationals. The women who act as surrogates usually belong to the lower rungs of the society and are not economically sound. They receive a higher remuneration for surrogacy from foreign nations as compared to Incan nationals. This higher amount would lead to improved living conditions, education for their children and a healthy environment for the families that these women support. By restricting the practice of their profession only too Incan nationals, they are being deprived of right to life through the imposition of such an arbitrary and unreasonable restriction on their right to livelihood. It is in this situation that the state, as a part of its positive obligation 63 under Article 21, must make provision or must recognize the mechanisms like surrogacy, so that parties who are unable to procreate child on their own, can legitimately exercise their right to ‘reproductive choices’. 4.2 RIGHT TO REPRODUCTIVE CHOICES COMES UNDER THE PURVIEW OF RIGHT TO PRIVACY In India, ‘the right to have reproductive choices’ has been declared as part of Article 21 of the constitution of India64. The Supreme Court in the case of R.Rajgopal v. State of Tamil Nadu65 held that the right to life includes the ‘right to privacy’. A citizen has a right to safeguard not 63Mahendra P. Singh, Human Rights, Justice and Constitutional Empowerment 36 (C. Raj Kumar, K. Chockalingam ed., Oxford University Press 2007). 64 B.K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A.P. 156. 65 R. Rajgopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632. 17
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 only his own privacy but also that of his family, marriage, procreation, motherhood, child bearing and education among other matters. Here, surrogacy falls under the category of procreation and thus, must be protected under Article 21 which guarantees the ‘right to have reproductive choices’. As stated in the abovementioned case, right to privacy is a subsidiary of right to life and this aspect which is procreation, must be a matter restricted to the private sphere of an individual or a surrogate. The Andhra Pradesh High Court in the case of B.K Parthasarthi v. Government of Andhra Pradesh66 recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive autonomy’ of an individual as a facet of his ‘right to privacy’. When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment of one’s privacy. Similarly, in the case at hand, government’s interference or restriction on surrogacy arrangements with foreign nationals amounts to direct encroachment of one’s privacy. Even though the Supreme Court in Javed v. State of Haryana67upheld ‘the two living children’ norm to debar a person from contesting a Panchayati Raj election, it refrained from stating that the right to procreation is not a basic human right 68. Generally, couples are unable to conceive or give birth to a child owing to the defects in the reproductive faculty of their body or owing to their infertility69. In Roe v. Wade70, the court had decided that every woman
66 B.K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A.P. 156. 67 Javed v. State of Haryana, (2003) 8 S.C.C. 369. 68 Law Commission of India, 228th Report on Legislation to Regulated Assisted Reproductive Technology Clinics as well As Rights and Obligations of Parties to a Surrogacy, ¶1. 69 Find Out the Reasons for Needing a Surrogate Mother, (Feb. 9, 2016), http://childrenlaws.laws.com/surrogacy/surrogacy-mother/reasons-for-needing-one. 70 Roe v. Wade, 410 U.S. 113 (1973). 18
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 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. Article 16(1) of the UDHR (1948) reads that, “men and women of full age, without any limitation due to race, nationality or religion have the right to marry and found a family”. The judiciary in India too has agreed with the decision of the US Supreme court in Jack T. Skinner v. State of Oklahoma71, which characterized the right to reproduce as “one of the basic civil rights”. So, if parties are unable to conceive a child on their own, and in case they desire such, the only choice available to such a couple is that of surrogacy. Moreover, surrogacy, from the perspective of the ‘Surrogate Mother’ or ‘Gestational Mother’, is being considered as an opportunity from them to maintain themselves and as a tool to empower them financially 72. Even though surrogacy is considered as an immoral or unethical transaction and at times, also equated with prostitution73, it has opened new avenues for poor women in India who are otherwise unable to fulfil their livelihood. Also, morality may be a factor while determining public interest, but there is a difference between Popular Morality and Constitutional Morality. Restrictions can only be imposed on basis of the latter. - Naz Foundation case, further elaborated in S Khushboo v Kaniammal74. When the right to reproduce has been considered a basic civil right, it is immaterial whether the person with whom one reproduces is of the same nationality or not. Nations should not act as boundaries that restrict or deprive the right to livelihood of women in India. Their chance of having a higher standard of living increases with the inclusion of foreign nationals 71 Jack T. Skinner v. State of Oklahoma, 316 U.S. 535 (1942). 72 Amana Fontanella Khan, India, the Rent-a-Womb Capital of the World, Slate (Feb. 14, 2016), http://www.slate.com/articles/double_x/doublex/2010/08/india_the_rentawomb_capital_of_th e_world.html. 73 Jean M. Sera, Surrogacy and Prostitution: A Comparative Analysis, 5 JOURNAL GENDER & THE LAW 315 (1997). 74 S Khushboo v. Kaniammal, (2010) 5 S.C.C. 600. 19
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 as they bring in much required exchange rates into the country. Right to reproduction or procreation is not just a matter of privacy, but also a basic civil right which a woman exercises. So, it is better to give legality to this concept of surrogate contracts because “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational” and ultimately such legality will create opportunity for poor women to earn their livelihood in a better way. 5. THAT THERE SHOULD BE NO BAN ON SURROGACY American Law Reports75 defines surrogacy as “a contractual undertaking whereby the natural or surrogate mother, for a fee, ………………..to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth76.” Further, the Supreme Court of India 77 has defined surrogacy as: “a method of reproduction, whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracting party.” Surrogacy is scientific boon using borrowed eggs, sperms or womb for childbearing for some unblessed couples. New reproductive technologies claim to help human beings through creative interventions that reduce suffering and have the potential to transform society. 5.1 SURROGACY AND ADOPTION- A RAY OF HOPE FOR THE UNBLESSED Adoption law provides an opportunity to not only the child (destitute or abandoned) to have a family but also to the couple to fulfill their desire of having a child. Following the same rationale, it can be argued that the state must recognize surrogacy transactions or techniques through which surrogacy transaction may be carried out. The Supreme Court in the landmark decision of Baby Manjhi,78 legalized commercial surrogacy with a direction to the legislature to pass an appropriate law governing surrogacy in 75 Baby M, Re, 1988 N.J. 77 A.L.R.4th 1. 76Smita Chandra, Surrogacy & India, Social Science Research Network (Feb. 18, 2016), http://ssrn.com/abstract=1762401. 77 Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84. 78 Id. 20
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 India. At present, a surrogacy contract between the parties and ART Clinics Guidelines 79 are the only two guiding forces for governing this transaction. In another recent case, Jan Balaz v. Anand Municipality80, the question that arose was whether the children would be entitled to Indian citizenship by birth as they were born in India to an Indian national. The passport authorities had withheld the children’s passports on account of the pending litigation. In its final decision, the Supreme Court granted an exit permit to the children, thus evidencing again, a pro-surrogacy contract stance of the judiciary. 5.2A “RIGHT TO PARENT” FOR GAY MEN For gay men who want to parent a genetically–related child, surrogacy may be their only hope.81Just as surrogacy was not on the agenda at Cairo, neither was parenting by same-sex couples or gay or lesbian individuals. But LGBT&Q—Lesbian, Gay, Bisexual, Transsexual and Queer or Lesbian, Gay, Bisexual, Transsexual and Questioning—rights have achieved widespread recognition since 1994. Since reproductive rights, including the right to parent, are human rights, like other human rights, they should be universally assured.82 As Justice Albie Sachs explained in Minister of Home Affairs v. Fourie83, extending the benefits of marriage to same-sex partners is fundamentally a matter of equality:
Our
Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. A democratic, universalistic, caring and egalitarian society embraces everyone and accepts people for who they are. The acknowledgement and acceptance of 79 Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005), I.C.M.R. (Feb. 26, 2016, 18:57 P.M.), http://icmr.nic.in/art/art_clinics.htm. 80 Jan Balaz v. Anand Municipality, A.I.R. 2010 Guj. 21. 81Anne R. Dana, The State of Surrogacy Laws: Determining Legal parentage for Gay Fathers, 18 DUKE J. GENDER L. & POL’Y 353, 363 (2011). 82 Universal Declaration of Human Rights, 1948. 83 Minister of Home Affairs v. Fourie,(2006) 1 S.A. 524 (C.C.). 21
4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin colour has been the express basis of advantage and disadvantage. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect 84. Therefore, supporting the ban on surrogacy will lead to despair of gay men.
5.3VIOLATION OF ARTICLE 19 AND 21 According to Article 16 (1)85, “men and women of full age…………found a family”. In India also, the reproductive right is a basic human right given under Article 21 86 . The Andhra Pradesh High Court in B. K. Parthasarthi v. Government of Andhra Pradesh 87, ruled that reproductive right is a human right and its comes under right to privacy and also they agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, 88which characterized the right to reproduce as “one of the basic civil rights of man89”. Internationally, the right to work and the right to just and favourable remuneration has been protected in a number of conventions. For Instance, UDHR under Article 23 provides that: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone who works has the right to just and favourable remuneration ensuring for himself………………protection.” The UDHR protects any arbitrary interference from the State to a person’s right to work and earn remuneration. 84 Id. 85 Universal Declaration of Human Rights, 1948 art. 16(1). 86 Indian Constitution, 1950 art. 21. 87 B. K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A. P. 156. 88 Jack T. Skinner v. State of Oklahoma, 316 U.S. 535. 89 Law Commission of India, 228th Report on Legislation to Regulated Assisted Reproductive Technology Clinics as well As Rights and Obligations of Parties to a Surrogacy.
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4th NHRC – LC-I NATIONAL MOOT COURT COMPETITION, 2016 Moreover, Article 6 of International Covenant on Economic, Social and Cultural Rights “1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. Moreover, there must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and object sought to be achieved. If there is a direct nexus between the restrictions and the object of the act, then strong presumption in the favour of the constitutionality of the act will naturally arise.90 In the present case saying that there are chances of abuse and exploitation would be improper, because such observations are extraneous and far-fetched. A restriction on far-fetched grounds cannot be reasonable. Moreover, there should be laws to regulate the present conditions of surrogacy rather than putting a blanket ban on such a technological driven gift of medical science.
90 Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, A.I.R. 1960 S.C. 1080. 23
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PRAYER In the light of arguments advanced and authorities cited, the Petitioner humbly submits that the Hon’ble Court may be pleased to adjudge and declare that:
1. The writ petition filed is maintainable. 2. The Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015 be declared unconstitutional because it is in violation of Article 14 Article 19(1) (g) Article 21 3. There should be no ban on surrogacy.
And make any other order as it deems fit in the interest of equity, justice and good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE PETITIONER
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