Memorial for Respondents Team '32'

TEAM CODE: 32

4TH NHRC LAW CENTRE I NATIONAL MOOT COURT COMPETITION, 2016

IN THE HON’BLE SUPREME COURT OF INCA

WRIT PETITIONS NO _____/2016 UNDER ARTICLE 32 OF THE CONSTITUTION

PETITIONER

MARIA AND OTHERS V.

RESPONDENT

UNION OF INCA AND ANOTHER

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

COUNSEL FOR THE RESPONDENTS

Memorial for Respondents

CONTENTS LIST OF ABBREVIATIONS.................................................................................................................. INDEX OF AUTHORITIES.................................................................................................................. STATEMENT OF JURISDICTION....................................................................................................... STATEMENT OF FACTS.................................................................................................................... STATEMENT OF ISSUES.................................................................................................................. SUMMARY OF ARGUMENTS........................................................................................................ WRITTEN PLEADINGS....................................................................................................................... 1.

THE PRESENT PETITION IS NOT MAINTAINABLE...........................................................

2.

THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS)

ACT 2015 IS CONSTITUTIONALLY VALID................................................................................. 2.1.

THE ACT IS NOT IN VIOLATION OF RIGHT TO EQUALITY GUARANTEED UNDER

ARTICLE 14 OF THE CONSTITUTION OF INCA................................................................................ 2.2.

THE ACT

IS NOT IN VIOLATION OF

RIGHT

TO

FREEDOM

GUARANTEED UNDER

ARTICLE 19 OF THE CONSTITUTION OF INCA.................................................................................

3.

2.3.

THE IMPUGNED ACT IS NOT IN VIOLATION OF ART. 21.......................................................

2.4.

THE IMPUGNED ACT IS NOT IN VIOLATION OF ART. 25....................................................

THE PRACTICE OF SURROGACY INFRINGES ARTICLE 23 OF THE

CONSTITUTION OF INCA............................................................................................................ PRAYER................................................................................................................................................

Memorial for Respondents

LIST OF ABBREVIATIONS ABBREVIATIONS

EXPLANATION

§ /s &

Section And

A.I.R.

All India Reporter

A.L.J.

Allahabad Law Journal

Anr. A.P. Art.

Another Andhra Pradesh Article

Bom.

Bombay

Del.

Delhi

Ed.

Edition

Govt.

Government

Guj.

Gujarat

H.C.

High Court

Hon’ble

Honorable

ICCPR

International Covenant on Civil and Political

Ker.

Rights Kerala

Ors.

Others

Punj.

Punjab

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

SCR

Supreme Court Reports

T.N.

Tamil Nadu

UDHR

Universal Declaration Of Human Rights

UOI

Union of India

W.B.

West Bengal

v.

Versus

INDEX OF AUTHORITIES INDIAN CASES 1. Acharya MaharajShri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, A.I.R. 1974 S.C. 2098.........................................................................................................................28 1|Page Memorial for Respondents

2. Anwar v. State of Jammu & Kashmir, A.I.R. 1971 S.C. 337...................................................14 3. Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84.............................................18, 26 4. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802...........................................31 5. Bandua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802.............................................15 6. Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106......................................................21 7. Budhan Choudary v. State of Bihar, A.I.R. 1955 S.C. 191......................................................19 8. Charanjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41...........................................19 9. Eshan Kishar Acharjee v. Harish Chandr Chowdhry, 1874(13) B.L.R App.42 (West Beng).. 32 10. G Gurunadha Reddy v. A.P.Road Transport Corporation, 1999 A.I.R. 179 (A.P.)..................25 11. Govindlalji v. State of Rajasthan, A.I.R. 1963 S.C. 1638........................................................27 12. Jan Balaz v. Anand Municipality, A.I.R. 2010 (Guj.) 21.........................................................17 13. Jan Balaz v. Union of India, 2010 A.I.R. (Guj.) 21..................................................................26 14. Javed v. State Of Haryana, (2003) 8 S.C.C. 369......................................................................28 15. Javed v. State of Haryana, A.I.R. 2003 S.C. 3057...................................................................27 16. Kanubhai Brahmbhatt v. Union of India, A.I.R. 1987 S.C. 1159.............................................15 17. Kartar Singh v. State of Punjab, (1994) 3 S.C.C 569...............................................................26 18. Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952 S.C. 123...................................20 19. Kedar Nath Bajoria v. State of West Bengal, A.I.R. 1954 S.C. 660.........................................18 20. Khatri and Ors v. State of Bihar and Ors, A.I.R. 1981 S.C. 1068............................................15 21. Khoday Distilleries v. State of Karnataka, (1995) 1 S.C.C. 574..............................................24 22. Kishorilal v. The State, A.I.R. 1957 (Punj.) 244.....................................................................18 23. Lakshmi Prasad v. Shivpal A.I.R. 1974 (All.) 313...................................................................14 24. Lord Krishna Sugar Mills Ltd. v. Union of India, A.I.R. 1959 S.C. 1124.........................21, 22 25. M.J.Sivani v. State of Karnataka, A.I.R. 1995 S.C. 1770........................................................26 26. Mohd. Ahmed Khan v. Shah Bano Begum and Ors., (1985) 2 S.C.C. 556.............................29 27. Naziranbai v. The State, A.I.R. 1957 (MP.) 1...........................................................................14 28. Oil India Limited and Ors. v. Drillmec S.P.A. and Ors., (2014) 5G.L.T. 296..........................14 29. Pathumma v. State of Kerala; A.I.R. 1978 S.C. 771 (¶ 14)......................................................24 30. People Union for Democratic Rights v. Union Of India, A.I.R. 1982 S.C. 1473....................30 31. People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473...................30 32. R.K Dalmia v. Justice S.R Tendolkar, A.I.R. 1958 S.C. 538...................................................19 33. Ratanchand Hirachand v. Askar Nawaz Jung, A.I.R. 1976 (A.P.) 112.....................................31 34. S P Gupta v. President of India and Ors, A.I.R. 1982 S.C. 149...............................................16 35. Secretary, HSEB v. Suresh, A.I.R. 1999 S.C. 1160..................................................................17 36. Smt. Sowmithri Vishnu v. Union of India & Anr., A.I.R. 1985 S.C. 1618..............................19 2|Page Memorial for Respondents

37. St. Stephens College v. University of Delhi, (1992) 1 S.C.C. 558..........................................17 38. State of A.P. and Ors. v. McDowell and Co. and Ors., (1996) 3 S.C.C. 709...........................20 39. State of Bombay v. Haman Sant Lal Arreja, A.I.R. 1952 (Bom.) 16.......................................23 40. State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75..............................................16 41. Suchita Srivastava and Anr. v. Chandigarh Administration, A.I.R. 2010 S.C. 235..................22 42. Sukhnandan Sharma Dinesh kumar v. Union of India, A.I.R. 1982 S.C. 902.........................23 43. The Chairman, Railway Board v. Mrs. Chandrima Das, (2000) 2 S.C.C. 465........................15 44. Thippaswamy v. State of Karnataka, A.I.R. 1983 S.C. 747.....................................................21 45. Yusuf Abdul Aziz v. State of Bombay, A.I.R. 1951 (Bom.) 470..............................................20

FORIEGN CASES 1. A vs C ( 1985) FLR 445 (U.K.)...............................................................................................32 2. Braunfield v. Brown, 366 U.S. 599 (1961) (U.S.)...................................................................28 3. Gallagher v. Kosher, 366 U.S. 617(U.S.).................................................................................28 4. In Re Baby M, 109 N.J. 36 (U.S).............................................................................................32 5. Jaycee B. v. Superior Court, 42 Cal. App. 4th 718 (1996) (Cal., U.S)....................................26 6. Johnson v. Calvert, 19 Cal. Rptr. 2d 494 (Cal., U.S)...............................................................26 7. Mc Gowan v. Maryland, 366 U.S. 420 (1961) (U.S.).............................................................28 8. Mutual Film Corporation v. Industrial Corporation, (1915) 236 U.S. 230 (U.S)....................21 9. Re: IJ [2011] EWHC (Fam) 921 (Eng)....................................................................................26 10. Younger v. Harris, (1971) 401 U.S. 73 (U.S.)..........................................................................21

BOOKS REFERRED 1. 1 DR SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA 1275 (2 nd ed. 2015) ..................................................................................................................................................29 2. 3 D.D.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Ed 2008).......27 3. IVOR JENNINGS, THE LAW AND THE CONSTITUTION 50 (5th ed. 1964).....................16 4. V.N. SHUKLA, CONSTITUTION OF INDIA 49 (MAHENDRA PAL SINGH eds., 12 th ed. 2013)........................................................................................................................................16 STATUTES 1. Indian Constitution, 1949...................................................................................................26, 31 2. The Hindu Adoption and Maintenance Act,1956.....................................................................32 3. The Indian Contract Act, 1872.................................................................................................31 3|Page Memorial for Respondents

INTERNATIONAL CONVENTIONS 1. American convention on Human Rights, 1978........................................................................31 2. European Convention of Human Rights, 1953........................................................................31 3. I.C.C. Statute, 1998..................................................................................................................30 4. International Covenant on Civil and Political Rights, 1966...................................................31 5. The Council of Europe Convention on adoption, 2008...........................................................32 6. U.N. Convention on the Rights of the Child,1990...................................................................19 7. Universal Declaration of Human Rights, 1948........................................................................31

LEGAL DATABASES 1. 2. 3. 4. 5.

www.manupatrafast.in www.westlawindia.com www.heinonline.org www.scconline.com www.lexisnexis.com

4|Page Memorial for Respondents

STATEMENT OF JURISDICTION

The respondents, Union of Inca and The Association of Custodian of Traditional Ethics, hereby submit to the jurisdiction of the Hon’ble Supreme Court of Inca under Article 32 the Constitution of Inca. The Hon’ble Court has the jurisdiction to adjudicate the present case.

5|Page Memorial for Respondents

STATEMENT OF FACTS John, a Christian U.S. national, married Maria, a Hindu Incan national, in 2009. Maria moved to US and acquired U.S. citizenship in 2014. Being unable to conceive naturally, the couple decided to have a child through surrogacy and entered into an agreement with Seema, a 25 year old housemaid and mother to a four year old son, through an Assisted reproduction technology (hereinafter ART) clinic – XYZ ART clinic. In November 2015, Inca passed a new law: ‘Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015' which had the following provisions: 

It banned the Assisted Reproductive Technology (ART) Clinics from providing surrogacy treatment to foreign nationals.



It was made an offence punishable with a fine of Rs. Five lakhs or imprisonment for a period of 1 year or both, in addition to cancellation of license of the Clinic.



The above provision was not applicable to Incan nationals and Non-Resident Incans (NRIs) and People of Incan Origin (PIOs).



It declared that a single woman or an unmarried woman is prohibited to be either a surrogate mother or a commissioning parent.



It declared that the dealings between commissioning parents and the surrogate woman would be on principal-to-principal basis without any liability or involvement of ART Clinics.



Further, it said that if ART Clinics facilitate agreements between the intending parties, they would not charge any fee or commission.

Consequently XYZ ART clinic refused render services to Maria because of concerns over Seema's eligibility to be a surrogate and the fact that John is a foreign national. Other ART clinics refused on similar grounds. Maria filed a writ petition in the Supreme Court of Inca challenging the constitutionality of the Act on the grounds of it being violative of fundamental rights as well as principles of natural justice. The Association of Medical Practitioners of ART Clinics (AMPAC) filed a petition challenging the Act as being violative of their fundamental right under Art. 19 (1) (g) of the Constitution. The All Inca Mahila Samithi filed a writ petition challenging the Act as being violative of the right to livelihood guaranteed under Art. 21 of the Constitution of Inca. Single Women (Professional Surrogates) Association filed a writ petition challenging the provision which restricts the right of single woman to act as surrogate as being violative of their rights. The Association of Custodians of Traditional Ethics showcased support for the new law and filed a petition seeking complete ban on surrogacy. The S.C. of Inca admitted all the petitions and decided to hear them together. 6|Page Memorial for Respondents

STATEMENT OF ISSUES

1. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE? 1 Whether the writ petition by Maria is maintainable? 2 Whether the petition by AMPAC is maintainable? 3 Whether the petition by All Inca Mahila Samithi is maintainable? 4 Whether the Petition by Single Women (Professional Surrogates) Association is 5

maintainable? Whether the petition by The Association of Custodians of Traditional Ethics is maintainable?

2. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT 2015 IS CONSTITUTIONALLY VALID? 2.1. Whether the Act is in violation of Right to Equality guaranteed under Art. 14 of the Constitution of Inca? 2.2. Whether the Act is in violation of Right to Freedom guaranteed under Art. 19 of the Constitution of Inca? 2.3. Whether the Act is in violation of Right to Life and Liberty guaranteed under Art. 21 of the Constitution of Inca? 2.4. Whether the Act is in violation of Right to Religion guaranteed under Art. 25 of the Constitution of Inca? 3. WHETHER

THE

PRACTICE

OF

SURROGACY

IS

VIOLATIVE

OF

THE

RIGHT

AGAINST

EXPLOITATION?

7|Page Memorial for Respondents

SUMMARY OF ARGUMENTS

1. THE PRESENT PETITION IS NOT MAINTAINABLE. The petition presented in this Hon’ble Court is not maintainable, as none of the fundamental rights of the petitioners have been violated. Furthermore, Maria (Petitioner 1) is not bestowed with the rights under Art 19 as she is not an Incan national. Additionally, the Supreme Court is not an appropriate forum to approach; the petitioners had to approach the High court before the Supreme Court. 2. THE COMMERCIAL SURROGACY

FOR

FOREIGNERS (MISCELLANEOUS) ACT 2015

IS

CONSTITUTIONAL. 2.1. The Act is Not in Violation of Article 14 of the Constitution of Inca.

The Act is not in violation as it fulfils the preconditions of rational nexus and intelligible differentia. It is not arbitrary. Foreign nationals are a distinct class as compared to the Incan nationals and hence the classification is rational and reasonable. There has been classification between single women and married women because of social realities as well as the right of a child to know his/her father. Hence, all the classifications, which are made in this act, are reasonable and rational. 2.2.

The Act is not in Violation of Article 19 of Constitution of Inca

The Right to freedom of speech and expression does not include the Right to procreate or reproduction. Arguendo, even if the right to freedom of speech and expression included the right to reproduction, the restrictions imposed by the Act would be valid as they are reasonable restrictions. Additionally, the claim by AMPAC (Petitioner 2) that their right to profession is violated is invalid. This is due to the fact that all rights under Art 19 are limited by reasonable restrictions. 2.3.

The Act is Not in Violation of Article 21 of the Constitution of Inca

This Act mainly protects the rights of the surrogates who are being exploited in the current system. The respondent has a responsibility to protect its citizens. By enacting this act the respondent has protected thousands of hapless women trapped in the surrogacy industry. This act is not in violation of Article 21 but is an Act in tune with the Directive Principles of State Policy (DPSP) benefitting the weaker sections of society. Furthermore, the Act does not violate the right to determination of women; it merely places a restriction with respect to it.

8|Page Memorial for Respondents

2.4.

The Act is in Violation of Article 25 of Constitution of Inca

This Act is not in violation of Article 25. It does not attack the essence of any religion. It merely imposes a ban on the arrangement of commercial surrogacy for foreigners to safeguard the rights of the surrogates. The Right to Religion is not an absolute right. The government may impose reasonable restraints on appropriate grounds as stated by the constitutional provision. This social restraint that the government has imposed is keeping in mind the health conditions of the surrogates who are being exploited in Assistive Reproductive Clinics all over the country. 3. THE PRACTICE

OF SURROGACY IS IN

VIOLATION

OF

ARTICLE 23

OF THE

CONSTITUTION

OF INCA.

The practice of commercial surrogacy is an arrangement where babies are commoditized and wombs are rented out. The multimillion-dollar surrogacy exploits helpless women from the economically weakest strata of society. These women rent out their wombs out of necessity and are in no position to assert their rights. The middlemen make most of the profit out of the arrangement as the surrogates lack bargaining position to demand for their rights to be protected. This idea of involving money in having a child has destroyed the sanctity of childbirth and parenthood reducing it to a commercial transaction.

9|Page Memorial for Respondents

WRITTEN PLEADINGS

1. THE PRESENT PETITION IS NOT MAINTAINABLE. Art. 32 of the Constitution of Inca guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the constitution i.e. fundamental rights. The Art. 32 (2) says that: “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. In the present matter, it is submitted that the petitioner Maria (hereinafter petitioner 1), being a foreign national, does not have the locus standi to approach this court for enforcement of rights under Art. 19 of the constitution of Inca and the petition is not maintainable in that respect. Art. 19 of the Constitution speaks of Protection of certain rights regarding freedom of speech, etc. Art. 19 (1) (a) and (g) states that: “All citizens shall have the right (a) to freedom of speech and expression and (g) to practise any profession, or to carry on any occupation, trade or business. The word ‘citizen’ in Art. 19 has been deliberately used to keep out all ‘non-citizens’ which would include ‘aliens’. It was laid down in Hans Muller of Nuremburg v. Superintendent, Presidency Jail, Calcutta1 that this Article applies only to ‘citizens’. Additionally, in Anwar v. State of Jammu. & Kashmir2, it was held that non-citizens could not claim fundamental rights under Art. 19. In Naziranbai v. The State3 and Lakshmi Prasad v. Shivpal4, it was held that Art. 19 does not apply to a ‘foreigner’. In contrast the Art. 14 of the Constitution of India provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, whereas under Art. 19, all citizens of India have been guaranteed certain rights as mentioned in Clauses (a) to (g) of sub-Article (1). Thus, while the protection under Art. 14 is available to any person the protection under Art. 19 is available only to a citizen of India5. 1Hans Muller of Nuremburg v. Superintendent, Presidency Jail, Calcutta, A.I.R. 1955 S.C. 367. 2Anwar v. State of Jammu & Kashmir, A.I.R. 1971 S.C. 337. 3Naziranbai v. The State, A.I.R. 1957 (MP.) 1. 4Lakshmi Prasad v. Shivpal A.I.R. 1974 (All.) 313. 5Oil India Limited and Ors. v. Drillmec S.P.A. and Ors., (2014) 5G.L.T. 296. 1|Page Memorial for Respondents

The petitioner 1, not being a citizen, is clearly not entitled to any fundamental right guaranteed by Art. 19 of the Constitution. The only rights which she can claim in the present proceedings are those which are available to all persons and not merely citizens. Furthermore, the fundamental rights of the first petitioner namely, right to equality, guaranteed under Art. 14, right to life and liberty under Art. 21, right to religion under Art. 25, has not been violated by the impugned Act and therefore the present petition is not maintainable. It is also the submission of the respondent that as per the decision in Kanubhai Brahmbhatt v. Union of India6, where the S.C. took serious concern at the litigants coming to this Court under Art. 32 of the Constitution instead of first moving the H.C. for the redressal of their grievances, the appropriate forum for the present claim is the H.C. The court while exhorting petitioners to impose selfdiscipline, shed some amount of institutional ego directed them to approach the H.C. and opined that: “If this Court takes upon itself to do everything which even the High Court can do, this Court will not be able to do what this Court alone can do under Article 136 of the Constitution of India, and other provisions conferring exclusive jurisdiction on this Court. There is no reason to assume that the concerned High Court will not do justice. Or that this Court alone can do justice. If this Court entertains writ petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of writ petitions would in course of time be instituted in this Court directly. The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions.” Also in the present matter, The Association of Custodians of Traditional Ethics (Respondent 2) has filed a petition. It is submitted that this being a PIL Writ Petition filed in the larger interest of society, it is maintainable. The S.C. has been termed as the 'guarantor and protector of fundamental rights' and has entertained a number of petitions under Art. 32 complaining of infraction of fundamental rights of individuals, or of weak and oppressed groups who are unable themselves to take initiative to vindicate their own rights. In Khatri and Ors v. State of Bihar and Ors7, (Bhagalpur Blinding case) the S.C. took cognisance of atrocities committed on under trials in prison upon a PIL being filed. In Bandua Mukti Morcha v. Union of India8, the S.C. entertained a matter concerning release of bonded labour raised by an organisation dedicated to the cause and in The Chairman, Railway Board v. Mrs.

6Kanubhai Brahmbhatt v. Union of India, A.I.R. 1987 S.C. 1159. 7Khatri and Ors v. State of Bihar and Ors, A.I.R. 1981 S.C. 1068. 8Bandua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802. 2|Page Memorial for Respondents

Chandrima Das9, the Court took notice of a violation of Fundamental right upon a petition being filed by a public spirited individual who was unconnected to the case. In S P Gupta v. President of India and Ors.10, the court enunciated that: “Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.” In the present matter the second respondent, as a public spirited body, moved by the plight of the surrogate mothers who are routinely exploited through the practice of surrogacy has approached the Supreme Court for violation of their fundamental rights. The petition is thus maintainable. 2. THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT 2015 IS CONSTITUTIONALLY VALID. 2.1.

THE ACT IS NOT IN VIOLATION OF RIGHT TO EQUALITY GUARANTEED UNDER ARTICLE 14 OF THE CONSTITUTION OF INCA.

It is humbly submitted before this Hon’ble Court that the Commercial Surrogacy for Foreigners (Miscellaneous) Act 2015, (hereinafter “the Act”) is not in violation of the petitioners Right to Equality guaranteed under Art. 14 of the Constitution of Inca. Equality before law and equal protection of the laws does not mean same treatment to everyone. As no two human beings are equal in all respects, the same treatment to them in every respect would result in unequal treatment 11. The Doctrine of equality does not envision that the state shall treat each and every individual in the same manner as this would be self-defeating and lead to inequality. In the words of jurist Ivor Jennings, among equals the law shall be equal and shall be equally administered and that like shall be treated alike.12 This court in recognition of this truth has stated in State of West Bengal v. Anwar Ali Sarkar13, that: “The State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies 9The Chairman, Railway Board v. Mrs. Chandrima Das, (2000) 2 S.C.C. 465. 10S P Gupta v. President of India and Ors, A.I.R. 1982 S.C. 149. 11V.N. SHUKLA, CONSTITUTION OF INDIA 49 (MAHENDRA PAL SINGH eds., 12th ed. 2013). 12IVOR JENNINGS, THE LAW AND THE CONSTITUTION 50 (5th ed. 1964). 13State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75. 3|Page Memorial for Respondents

discrimination between persons classified and those who are not members of that class.” The provisions of the Act forbid the Incan ART clinics from providing surrogacy treatment to foreign nationals and make it a punishable offence. By virtue of this provision foreign nationals who avail the services of Incan surrogates have been treated as a distinct class. It is submitted that the tests of intelligible differentia and rational nexus have been fulfilled by this legislative classification thereby rendering it non- arbitrary and constitutional. The equality in Art. 14 does not speak of formal equality before the law, but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation14. It is the first respondent’s assertion that there exist several social and economic realities which justify treating foreign commissioning parents as a distinct class and imposing restrictions on them. Foreign commissioning parents usually are older, richer and bettereducated than surrogate mothers. These couples invest considerable amounts of money to travel to another country and have a child through surrogacy. They are in placed in a position of power over the surrogate due to their socio economic condition and can easily exploit them. If the State leaves the existing inequalities untouched by its laws, it fails in its duty of providing equal protection of its laws to all persons15. The state has the duty to prevent exploitation of its citizens and the ban, not being a complete ban but a partial regulation of the sector, in the interest of welfare of the surrogates is non- arbitrary and constitutional. Legal status of the transnational surrogate child is also an area of concern for the State. There are several countries in the world that outlaw surrogacy and do not recognise children born out of surrogacy. Ascertainment of nationality and citizenship pose to be legal hurdles which endanger the child. By permitting foreign nationals from engaging Incan surrogates the future of the child would be left in a limbo and he would be at the risk of abandonment after being commissioned. In Jan Balaz v. Anand Municipality16, the Supreme Court had to intervene and direct authorities to issue exit visa to children born to a German couple through surrogacy because Germany does not recognise surrogacy thereby leaving the children stateless. In the Israeli Gay couples17 case the commissioning parent had to undergo DNA testing to prove the paternity of the children because Israeli law did not

14Secretary, HSEB v. Suresh, A.I.R. 1999 S.C. 1160. 15St. Stephens College v. University of Delhi, (1992) 1 S.C.C. 558. 16Jan Balaz v. Anand Municipality, A.I.R. 2010 (Guj.) 21. 17ANIL MALHOTRA, RANJIT MALHOTRA, Surrogacy for Single and Unmarried Foreign Persons: A Challenge under Indian Law, 2014 Int'l Surv. Fam. L. 165, 180 (2014). 4|Page Memorial for Respondents

permit homosexuals to adopt or engage surrogates and in Baby Manji Yamada v. Union of India18, the commissioned child had to spend two years in a Jaipur hospital in a state of uncertainty while her nationality was being decided, before the intervention of the apex court. These cases highlight the complexity of determining the nationality of such surrogate children. It is also the state's contention that it is not practicable for Inca by itself to create regulations which allow for transnational surrogate children to be recognised because this requires cooperation from the commissioning parent's nation to be effective which may be lacking. In addition to difficulties regarding the establishment of nationality of the child, other problems may arise in numerous situations of transnational surrogacy. The surrogate mother’s health or life may be threatened during pregnancy, she may be denied remuneration for her time in the event of an unsuccessful pregnancy or an abortion due to medical complications affecting her health, the surrogate mother may change her mind and want to keep the child, the commissioning parents may part or die during pregnancy and not want the child any longer, the child may be born with a disability and neither the surrogate mother nor the commissioning parents want him or her, a disability may be detected during pregnancy and the surrogate mother may not be willing to abort. It is conceded that these situations may arise with Incan commissioning parents as well but it is very obvious that it is more agreeable for the state to regulate its own citizens rather than foreign nationals. Welfare of a surrogate child and mother can be endangered by these foreign nationals without any recourse as they lie outside Incan jurisdiction. Arguendo, the possibility of trafficking of women for providing surrogacy to foreign nationals and the mushrooming of illegal clinics following the ban on surrogacy for foreigners is not valid grounds for declaring the Act ultra vires. The prohibition of any act by the state leads to such acts being carried out illegally. This does not in itself make legislation unconstitutional or arbitrary. Possibility of abuse of any enactment is no ground to strike it down.19 Furthermore, it is submitted that the provision of the impugned Act which prohibits single and unmarried women from being surrogates or a commissioning parent does not infringe upon the right to equality and is constitutionally valid. The equal protection of laws guaranteed by Art. 14 of the Constitution does not mean that all the laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation20. This was reiterated in numerous cases 21. It has been pointed out that, in post-modern society, traditional families are no longer the singular norm, however it is virtually 18Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84. 19Kishorilal v. The State, A.I.R. 1957 (Punj.) 244. 5|Page Memorial for Respondents

uncontested that a child fares best when raised in a home with married, biological parents. The fact that alternative family situations exist does not automatically mean that they should be permitted where their creation is intentional and voluntary. Stability of marriages is not an ideal to be scorned 22. Where there is ample evidence, that traditional family situations are best for children, governing authorities have a legitimate interest in passing laws and restrictions to promote the best possible atmosphere for children of having married, biological parents. It is with these considerations in mind that the legislature forbade single women from being commissioning parents. Another consideration which prompts such legislation is the right to know one's paternity. Articles 8 and 9 of the United Nations Convention on the Rights of the Child 23 preserve the identity of a child which enables the child to understand its social legacy; traditional, cultural and ideological heritage; the circumstances of the child's birth and identity of the father. The moral justification which underlines the right of every person to know one's origin has often been termed as informational selfdetermination. In Rohit Shekhar v. N. D Tiwari24, the Delhi H.C. held that: “So far as a child's rights are concerned, the ascertainment of one's biological origins is essential not only in the social context or satisfaction of a child's right to know his origins.” In a patriarchal society such as ours which places great importance on the identity of one's father it is in the interest of the surrogate child that single women are not permitted to bring a child into existence that shall have no putative or adopted father. It must also be noted that the situation of single woman contracting with a surrogate mother is distinct from a single man contracting with a surrogate mother. In the former the child has no opportunity to know one's father's identity and shall forever be denied right to know his or her paternity whereas it is not so in the latter. Conceding that there are many successful families that are unconventional and many children flourish without the knowledge of their paternity, it is still not justified to let a child deliberately be created knowing that his rights will be curtailed from the moment of his birth. The legislature has the legitimate objective of propagating traditional family structure through this Act and it is in the same vein that single parents are given lower preference over married heterosexual couples in matters of adoption. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of 20Kedar Nath Bajoria v. State of West Bengal, A.I.R. 1954 S.C. 660. 21Charanjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41; Budhan Choudary v. State of Bihar, A.I.R. 1955 S.C. 191; R.K Dalmia v. Justice S.R Tendolkar, A.I.R. 1958 S.C. 538. 22Smt. Sowmithri Vishnu v. Union of India & Anr., A.I.R. 1985 S.C. 1618. 23U.N. Convention on the Rights of the Child, Art. 8 & 9, Sept. 2, 1990. 24Rohit Shekhar v. N. D Tiwari, (2012) 1 J.C.C. 169. 6|Page Memorial for Respondents

the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgement over their wisdom25. A distinction should be drawn between 'discrimination without reason' and 'discrimination with reason'. The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances26. In the impugned legislation a distinction has been drawn between single women who perform surrogacy services and married women who perform similar services and it is the state’s submission that this is discrimination within reason. The distinction thus made is greatly relevant to the ultimate objective to prevent the body to be commoditised and preserving the welfare of Incan women. It is submitted that a single woman lacks the requisite familial support to take on the task of being a surrogate mother. Further, being in a vulnerable position, socially and economically, single women are prone to exploitation as has been seen in certain parts of Asia and Eastern Europe where surrogacy mafia recruit young women in the countryside for surrogacy lure them with the promise of a respectable job, rape them and take their passports away. 27 Single women being more susceptible to such exploitation the legislature of Inca is justified in making a provision to protect them. The National Commission for women and children recommends that the surrogate mother must have been married, begotten children for herself and must have completed her family. This would facilitate the surrogate mother to return to her family after handing over the child to the intended parents. Medically also, it is a prerequisite that the surrogate mother has proven fertility, which would mean that she has earlier pregnancy. If the surrogate mother has not had children earlier, she would not know what to expect out of a pregnancy and might find it difficult to cope up with the process28.In the case of Yusuf Abdul Aziz v. State of Bombay29, the court had remarked upon the shocking and oppressed state of womankind in Inca to uphold the constitutionality of a law 25State of A.P. and Ors. v. McDowell and Co. and Ors., (1996) 3 S.C.C. 709. 26Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952 S.C. 123. 27EUROPEAN CENTRE FOR LAW AND JUSTICE, SURROGATE MOTHERHOOD-A VIOLATION OF HUMAN RIGHTS, 4, (2012), http://www.ieb-eib.org/en/pdf/surrogacymotherhood-icjl.pdf (Last checked on Feb. 28th, 2016). 28Surrogate Motherhood- Surrogate Motherhood: Ethical Or Commercial Ethical or Commercial, http://ncw.nic.in/pdfReports/Surrogacy_Report_CSR.pdf (last checked on Feb. 01, 2016). 29Yusuf Abdul Aziz v. State of Bombay, A.I.R. 1951 (Bom.) 470. 7|Page Memorial for Respondents

accused to being against right to equality. It had opined that “women were deliberately put down, that there was a belief that women were not the equal of men in any walk of life” and further that women “were more often than not mere tools and passive tools in the hands of men and placed as they were it was impossible for them to resist the blandishments that men might hold out against them.” In such a scenario the legislature has sought to protect the disempowered and vulnerable class i.e. single women surrogates through the impugned Act. It being a special legislation under Art. 15(3) created for the protection of women is thus constitutional. The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises.30 In the present matter the legislative classifications made are non-arbitrary having satisfied the tests of intelligible differentia and rational nexus. The impugned legislation is therefore constitutional and there is no need for judicial intervention. 2.2.

THE ACT IS NOT IN VIOLATION OF RIGHT TO FREEDOM GUARANTEED UNDER ARTICLE 19 OF THE CONSTITUTION OF INCA. 2.2.1. The Impugned Act is not in violation of Art. 19(1)(a).

In determining whether the impugned law constitutes ‘restriction’ upon a particular fundamental right, the court has to examine the direct effect or impact of the impugned law upon that particular right. If the law has no direct relation to that particular right but relates to a different subject, but only incidentally31 or remotely affects that right, the law cannot be annulled as a restriction upon the fundamental right.32 The freedom of expression protects ‘expression’ and not ‘action’ or ‘conduct’. 33 It cannot be said that anything which not comes under the purview of Art. 19 (2) can be included under freedom of speech and expression. There is no direct relation between a surrogate’s right to reproduction and her right to express herself. The Court should approach an impugned statute from the point of view that Art. 19 (1) guarantees the rights as of vital necessity for the democratic processes.34

30See supra 24. 31Younger v. Harris, (1971) 401 U.S. 73 (U.S.). 32Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106. 33Mutual Film Corporation v. Industrial Corporation, (1915) 236 U.S. 230 (U.S). 34Lord Krishna Sugar Mills Ltd. v. Union of India, A.I.R. 1959 S.C. 1124. 8|Page Memorial for Respondents

The Supreme Court in Thippaswamy v. State of Karnataka,35 went on to assert that penal laws which define offences and prescribe punishments for the commission of offences do not attract Art. 19 (1) as these are not laws having a direct impact on the rights conferred by Art. 19 (1). A law is hit by Art. 19 if the “direct and inevitable consequence” of such law is to take away or abridge any of the freedoms guaranteed by Art. 19 (1). If the impact of the law on any of the rights under Art. 19 (1) is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Art. 19 will not be available for judging its validity. Right to reproduction does not come under the purview of Art. 19 (1) (a) but under right to life and personal liberty enforced under Art. 21 of the Constitution of Inca. In the famous case of Suchita Srivastava & Anr. v. Chandigarh Administration36, the Court held that a woman’s right to make reproductive choices is a dimension of ‘personal liberty’ as understood under Art. 21 of the Constitution. Through the right to reproduction you do not communicate or express to the society at large or small, so it cannot be brought under Right to expression. Arguendo, although the right to reproduction is not included under the ambit of right to freedom of speech and expression it is submitted that the restriction imposed by the impugned Act upon this supposed right is reasonable. The reasonableness of restriction is to be judged today and in the circumstances now existing and future possibilities are irrelevant. 37 Through transnational surrogacy the future of children is being endangered in the present. There are innumerable cases such as Baby Manji Yamada v. Union of India38, which shows that there is a lot of exploitation and it is the children’s future which is being destroyed. Therefore the restriction is reasonable. Article 19(2) states that: “Nothing in sub clause (a) of clause(1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” The act of surrogacy jeopardizes the health of the surrogate mother and the child. In country like Inca where morals and ethics are given so much importance, surrogacy is an act which defies all of them. 35Thippaswamy v. State of Karnataka, A.I.R. 1983 S.C. 747. 36Suchita Srivastava and Anr. v. Chandigarh Administration, A.I.R. 2010 S.C. 235. 37Lord Krishna Sugar Mills Ltd. v. Union of India, A.I.R. 1959 S.C. 1124. 38See supra 17. 9|Page Memorial for Respondents

Precedents are based on customs and therefore should be followed. This helps in upholding the value of the customs that influence the region thereby making decisions morally acceptable for the people. The practice of renting a womb and getting a child is like outsourcing pregnancy. Surrogacy motherhood, as an arrangement, in which a woman carries and bears a child for another person but takes no ownership of the child born, raises question on public morality and decency. Such surrogacy can be termed as reproductive trafficking, as it creates national and international traffic in which women have become movable property and object of reproductive exchange, brokered by intermediaries with profit motives. In Baby Manji Yamada case39, the S.C. observed that commercial surrogacy can be termed as wombs for rent, outsourced pregnancies or baby firms. 40 Such objectification of womanhood and treating of children as products being offensive to public morality, this law is a reasonable restriction and comes under Art. 19 (2). 2.2.2. The Impugned Legislation is not in violation of Art. 19 (1) (g). In the present case, the restriction applied by the state upon ART clinics through the impugned Act is not an absolute prohibition. The restriction is only limited to foreign couples. Where the restriction does not directly or remotely interfere with the exercise of the freedom of trade, the allegation of violation of Fundamental rights under Art. 19 (1) (g) cannot be sustained. 41 Art. 19 (2) to (6) saves not only existing laws but also future laws that the state might make.42 The law provides that the dealings between commissioning parents and the surrogate women would be on principal to principal basis without any involvement of ART clinics and if there is an agreement between the intending parties, the ART clinics would not charge any fee or commission. It has been seen that the ART clinics and the doctors appropriate the remuneration provided by the foreign couples, giving a miniscule amount to the surrogate mother. The ART clinics act as an intermediary between the intending parties and charge a huge fee or commission. The surrogates barely get anything as they are unaware of their rights and liabilities and are easily exploited. Generally, these surrogates are poor and illiterate and they do this to support and maintain their family and it’s a necessity for them in order to support themselves and their respective families financially. This vulnerability of the surrogates is exploited by the ART clinics while acting as middlemen. The state is correct in implementing the law through which the ART clinics cannot act as 39See supra 17 40See supra note 8. 41Sukhnandan Sharma Dinesh kumar v. Union of India, A.I.R. 1982 S.C. 902. 42State of Bombay v. Haman Sant Lal Arreja, A.I.R. 1952 (Bom.) 16. 10 | P a g e Memorial for Respondents

an intermediary or do not charge any fee or commission. The reasonableness of a restriction has to be determined in an objective manner and the standpoint of the interest of the general public and not from the point of view of the person upon whom the restrictions are imposed. In other words, a law cannot be said to be unreasonable merely because, in a given case, it operates harshly.43 Res extra commercium (a thing outside commerce) is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. It is submitted that children and wombs are not tradable commodities and cannot be object of private rights. Article 47 of the Constitution of Inca states that: “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” It is the state’s responsibility to protect its citizens from exploitation and ill treatment. The Act forbids the act of surrogacy from becoming a business. There are some matters in which the state can prevent trade in order to maintain public health, nutrition, decency and morality. In Khoday Distilleries v. State of Karnataka,44 the Supreme Court laid down the following proposition: “The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium (outside commerce). There cannot be business in crime.” The state is right in enacting this Act so as to prevent commercial surrogacy because renting of a womb cannot be treated as a trade or a business or profession because there are some things like surrogacy which are not susceptible to private rights and cannot be traded, i.e., res extra commercium. It is the duty of the State to not let these things be treated as objects of trade. Furthermore the state, having the competency to impose restriction on the petitioners, has not imposed a complete prohibition. The state has merely created regulations to prevent exploitation and the petitioner’s right to free trade and profession has not been taken away. 43Pathumma v. State of Kerala; A.I.R. 1978 S.C. 771 (¶ 14). 44Khoday Distilleries v. State of Karnataka, (1995) 1 S.C.C. 574. 11 | P a g e Memorial for Respondents

2.3.

THE IMPUGNED ACT IS NOT IN VIOLATION OF ART. 21.

The object of Art. 21 of the Constitution of Inca is to prevent encroachment on personal liberty by the state except in accordance with law.45 Government has not violated Art. 21 while enacting this Act. The main motive of the legislature while enacting this Act was to protect the lives of thousands of women who were being exploited because of surrogacy. The women involved in the instant case are extremely vulnerable women because of their socio economic strata. They take surrogacy as a final option to make ends meet and hence are not in a position to bargain for their basic rights to be granted to them. This practice has made pregnancy a service and babies products. Couples who can afford surrogacy essentially buy babies from surrogates and this sale is facilitated by ART clinics. The surrogacy business is estimated to be above USD 2.3 billion. 46 The spoils of this business hardly reach those who have undergone physical, psychological, physiological and social difficulties in delivering surrogate babies – the surrogate mothers. Especially in cases, which include foreign couples, it is extremely risky for the surrogate mothers. The stakes being high, they are not paid in the case of a miscarriage or if they are unable to conceive. There have been multiple cases where the commissioning parents have refused to take the surrogate babies and they are left with the surrogate mother47. Disqualification on the right of being able to opt for surrogacy as an option of conception does not contravene the right to life. It is a disqualification conceptually devised for the interests of the surrogates and is in consonance with the government’s responsibility in protecting them from exploitation. Multiple countries have opted for a complete ban on commercial surrogacy. Inca is one of the few countries, which has been tolerant to this medical practice only because of the number of livelihood at stake. The State seeks to dismantle this exploitative practice in a phase by phase manner in order to be able to provide alternative means of livelihood for these women. The Government is required to strive to promote the welfare of the people and developing a social order empowered at distributive justice - social, economic and political. The State shall promote with 45G Gurunadha Reddy v. A.P.Road Transport Corporation, 1999 A.I.R. 179 (A.P.). 46SANJEEV SIROHI, Surrogacy Laws in India, http://yojana.gov.in/surrogacy-laws-inindia.asp (last checked on Feb. 01, 2016). 47JUARAWEE KITTSILPA, Thai surrogate says unaware twin had Downs until late in pregnancy, http://www.reuters.com/article/us-thailand-surrogacyidUSKBN0G30KT20140803 (last checked on Feb. 01, 2016). 12 | P a g e Memorial for Respondents

special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally downtrodden48. The surrogate women come from low-income households and are in the profession because of lack of choice and dire need of money. In such a situation they do not have the bargaining power to ensure they have a fair deal. The Respondent 1 understands that it is its duty to protect the weaker sections of society and seeks to do that through this Act. Respondent 1 would also like to present this court with the status quo with respect to the surrogacy business. There have been cases where foreigners who opt for surrogacy in India have run into legal complications because of lack of legal framework 49. There have also been cases where the commissioning parents split up leading to further complications. 50 These complications are further compounded when the parents are foreigners as we are dealing with different national laws. The counsel of the respondent would like to draw the attention of this court to the fact that multiple countries in the world do not recognize commercial surrogacy. Furthermore in the cases where a child is born to a surrogate mother using sperm and eggs from anonymous donors because the infertile couple is unable to create their own embryo using the in vitro fertilization techniques, it leads to multiple legal issues as to who are the parents 51. It is submitted that there is no existing legal framework to deal with commercial surrogacy for foreigners and the respondent 1 deems it appropriate to impose this ban. Additionally, Art. 21 protects livelihood but its protection does not extend to the avocation, business or trade injurious to public interest or has invidious effect on public morale or public order 52. In the instant case, the State had to ban commercial surrogacy for foreigners on grounds of public morality. The practice of foreigners coming to Inca to avail surrogacy services have made Inca seem like a baby-market where babies are commoditized and sold. The state recognizes the fact that foreigners are attracted towards Inca as it provides them surrogates at a cheaper rate but does not appreciate its citizens being exploited. Additionally the State is under a responsibility to protect the dignity of all of its citizen sunder Article 21, which is clearly being violated because of surrogacy. As per Justice Ramaswamy, in the case of Kartar Singh v. State of Punjab53 there can be no liberty 48INCA CONST. art. 47 49Jan Balaz v. Union of India, 2010 A.I.R. (Guj.) 21; Re: IJ [2011] EWHC (Fam) 921 (Eng). 50Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84. 51Jaycee B. v. Superior Court, 42 Cal. App. 4th 718 (1996) (Cal., U.S); Johnson v. Calvert, 19 Cal. Rptr. 2d 494 (Cal., U.S). 52M.J.Sivani v. State of Karnataka, A.I.R. 1995 S.C. 1770. 53Kartar Singh v. State of Punjab, (1994) 3 S.C.C 569. 13 | P a g e Memorial for Respondents

without social restraints. Liberty of each citizen is born of and must be sub ordinated to the liberty of the greater number. The essence of civil liberty is to keep alive the freedom of individual subjects to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. Through this act the state has merely tried to impose suitable restraints to ensure that the liberty of the greater number. By restraining the liberty of the foreigners who come to Inca for availing children, the state has protected the dignity and liberty of thousands of Incan women from becoming surrogates. The respondents would like to plead to this Court to judicially notice the problem of exploitation of surrogate women and uphold the constitutional validity of the legislation, which seeks to protect the weaker section of society. 2.4.

THE IMPUGNED ACT IS NOT IN VIOLATION OF ART. 25.

The Freedom of religion is not absolute 54. Art. 25 (1) of the Constitution of Inca empowers every citizen with the right to freedom of religion. Art. 25 (2) imposes the restraints to this right which are public order, morality, health, social welfare, social reform, and throwing open Hindu religious institutions of a public character to all classes and sections. It is submitted that the Act was enacted with the purpose of promoting the weaker sections of society. The legislative intent was social welfare and reform. The commercialization of surrogacy for foreigners had led to the exploitation of thousands of Incan citizens. Religious freedom is subject to laws made for social reform and welfare under Art. 25 (2). 55 In the instant case the law made prohibiting commercial surrogacy was made to protect the surrogates from exploitation and was adopted by the respondent to promote social welfare of its citizens. Art. 25 (2) provides that where there is conflict between religious practice and the need of social reform, religion must yield. 56 In the instant case it was imminent necessity for social welfare for thousands of women and social reform with respect to this section of society, which led the state to enact the Act, which banned commercial surrogacy for foreigners. A general legislation such as this, which seeks to advance a secular purpose, which is within the competence of the state, would not offend against the establishment clause because it merely imposes an indirect burden on religious observance.57 54Govindlalji v. State of Rajasthan, A.I.R. 1963 S.C. 1638. 55Javed v. State of Haryana, A.I.R. 2003 S.C. 3057. 563 D.D.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Ed 2008). 14 | P a g e Memorial for Respondents

Challenging this act on the ground of religious rights does not have strong legal backing. One fundamental right of a person will have to coexist in harmony with the exercise of another fundamental right of others and also with reasonable and valid exercise of power by state in the light of the Directive Principles in the interests of social welfare as a whole. 58 In the instant case the Right against exploitation of the surrogates is being pitted against the Right to religion of petitioner 1. It is submitted that the Religious rights of petitioner 1 to have children can be protected by opting for other alternatives to have children excluding commercial surrogacy as it violates another fundamental right of another group of people. The petitioner 1 in order to exercise her religious rights can take alternative methods such as adoption. The counsel for the respondent would like to submit to this honourable court that the health of thousands of surrogates is at stake because of commercial surrogacy. The respondent 1 would also like to point out the fact that it was not only the surrogates but also the health of the child, which was at stake. The surrogates have to undergo immense physical and mental stress during surrogacy and are not given enough medical attention. In most cases ART clinics are worried about results and delivering healthy babies for the commissioning parents. The psychological and medical needs of the surrogates are neglected after delivery of the child. The act of having to give away a child who is one’s womb for nine months is an extremely traumatic experience despite knowing it’s not one’s child. Children born out of surrogacy have more psychological problems than other children. It has been proven that children born out of surrogacy tend to have more problems with adjusting and handling emotions.59 The Religious freedom is subject to public health. 60 In this case clearly the practice of commercial surrogacy affects the health of the surrogates as well as the surrogate baby in an extreme manner. Arguendo, even if the right to have a child was a personal indispensable right under the Hindu Law, the statutory law i.e. in the instant case the impugned Act would prevail as when there is a conflict between a personal law and a statutory law, the statutory law prevails over the personal law.61 57Braunfield v. Brown, 366 U.S. 599 (1961) (U.S.); Gallagher v. Kosher, 366 U.S. 617(U.S.); Mc Gowan v. Maryland, 366 U.S. 420 (1961) (U.S.). 58Acharya MaharajShri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, A.I.R. 1974 S.C. 2098. 59Journal of Child Psychology and Psychiatry, June 2014, ISSN: 1469-7610. 60Javed v. State Of Haryana, (2003) 8 S.C.C. 369. 61Mohd. Ahmed Khan v. Shah Bano Begum and Ors., (1985) 2 S.C.C. 556. 15 | P a g e Memorial for Respondents

3.

THE

PRACTICE

OF

SURROGACY

INFRINGES

ARTICLE

23

OF

THE

CONSTITUTION OF INCA The surrogacy industry in Inca is estimated to be above 500 million dollars. Surrogacy is an arrangement that recognises women as a commodity, providing an "endocrinological vehicle" for performing a "gestational role".62 Human life has been considered to be invaluable, but surrogacy commoditises reproduction and treats it as if it were a tradable item. A woman is treated as ‘a reproductive conduit’63 where her womb is equated to a commodity and children are equated to ‘pets or products’.64 Surrogacy is a direct attack on the human dignity of a woman as it treats her as a mere baby carrier who can be bought for a particular price. There have been multiple instances all over the world where surrogacy has been used as a cover for human trafficking activities 65. Through this arrangement man is meddling with nature and playing god trying to create life. Additionally, if a childless couple wants a child, they can always adopt children. Surrogacy has also been used as an easy way out by career oriented women who view children as a mere societal status symbol. The Assisted Reproductive Clinics and middlemen in the industry exploit surrogates who are used as ‘baby carriers’. All this has led to numerous countries banning surrogacy in toto. The ambit of Art. 23 is wide and unlimited and its purpose is to wipe out the antisocial custom of begar, traffic in human beings or other forms of forced labour for economic gain wherever they are found.66 Art. 23 is designed to protect the individual not only against the state but also against other private citizens. Art. 23 strikes at forced labour in whatever form it may manifest itself, because it is in violation of human dignity and is contrary to basic human values.67 In the instant case the services rendered by surrogates qualify as forced labour as the women who consent to be surrogates belong to 62Christine Szikla, Surrogacy; Why women lose? (1996) http://wwwold.infoxchange.net.au/wise/HEALTH/RT2.htm (Last checked on Feb. 26th, 2016).

63Raymond, J. G., Reproductive Gifts and Gift Giving: The Altruistic Woman. Hastings Center Report (1990) 20, http://onlinelibrary.wiley.com/doi/10.2307/3563416/abstract (last checked on Feb. 01, 2016). 64Annas, G. J. (1988), Death without Dignity for Commercial Surrogacy: The Case of Baby M. Hastings Center Report.

65EUROPEAN CENTRE FOR LAW AND JUSTICE, SURROGATE MOTHERHOOD-A VIOLATION OF HUMAN RIGHTS, 4, (2012), http://www.ieb-eib.org/en/pdf/surrogacymotherhood-icjl.pdf (Last checked on Feb. 28th, 2016). 66Constitutional Assembly Debates, 468-528 http://parliamentofindia.nic.in/ls/debates/debates.htm (last checked on Feb. 3, 2016) 671 DR SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA 1275 (2nd ed. 2015). 16 | P a g e Memorial for Respondents

the vulnerable sections of society and do it out of necessity. In a country like Inca where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but in reality is involuntary because while entering into the contract, the employee by reason of his economically helpless condition, is faced with Hobson’s choice either to starve or submit to exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustices from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer 68. Art. 23 explains no one shall be forced to provide labour or service against his will, even though it may be under a contract of service.69 It is submitted that the arrangement of commercial surrogacy is one such case where surrogates are forced to work in the industry and are exploited by the ART clinics as well as other middlemen who are involved in the business. Surrogacy motherhood is the commodification of the human body. Such commodification in itself violates the dignity of both the surrogate mother and the child. This is a process through which the child is treated as an object to be sold and the surrogate’s womb is up for rent. The surrogate mothers belong to the weaker strata of society and are part of this profession because of necessity. There have been multiple cases where family members have coerced women into being a part of the profession because of lucrative pay. In a developing country, which has a high number of illiterate impoverished people, forced surrogacy is one of the main threats of commercial surrogacy.70 Force in this context includes not only physical force but also mental compulsion or due to poverty, hunger or the like. 71 Art. 7 of the International Criminal Statutes includes forcible pregnancies as one of the crimes against humanity.72 This profession, which is essentially selling of one’s womb for financial benefits, does not take into consideration the surrogate’s health. In a country such as Inca which already has a very high maternal morbidity and infant mortality rate, this process of women renting their womb and producing babies 68Id. 69People Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473. 70Nicole Bromfield, Global Surrogacy in India: Legal, Ethical and Human Rights Implications of a Growing Industry, , http://onlinelibrary.wiley.com/doi/10.2307/3563416/abstract (Last checked on Feb. 03, 2016).

71People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473. 72I.C.C. STATUTE, art. 7, July 1, 2002. 17 | P a g e Memorial for Respondents

for a financial reward will be counterproductive as there have been multiple cases where surrogates have not been paid because of a miscarriage or a child born with defects. 73 There is no clarity on the long-term effects of fertility drugs, obstetric complications or surgical procedures, which are used on surrogacy workers. Further the psychological ramifications are devastating when a woman is forced to relinquish her child, particularly since the neither the commissioning parents nor the ART clinic follow up on a surrogate's health post-delivery. Under Art. 23 every citizen of Inca is protected against being exploited. 74 This provision of the Incan constitution is extremely wide and is targeting forced labour and trafficking wherever it is found. 75 Exploitation takes place when a woman or child is subjected to the commercial or immoral purposes of some powerful man or group- taking advantage of the natural disability or helplessness of victims76. Art. 23 is not limited in its application against the state and can be against any private person indulging in any practice, which is exploitative in nature. 77 Whenever a private person is violating the right under Art. 23, the state is constitutionally obligated to take necessary steps for the purpose of interdicting such violation. In the instant case the ART clinics as well as those who were availing surrogate services were the private persons who violated Art. 23 and the government enacted this Act to interdict the violation. Furthermore it is submitted that surrogacy agreements are by their very nature opposed to public policy and therefore unenforceable. The draft ART Bill 2014 78 defines surrogacy agreement as an agreement between the commissioning couple availing of assisted reproductive technology and the surrogate mother. An agreement is unlawful if the court regards it as opposed to public policy 79. The normal function of the courts is to enforce contracts; but consideration of public interest may require the courts to depart from their primary function and to refuse to enforce a contract and it is the court's prerogative to interpret the concept of public policy. An agreement having tendency to injure public 73ALLISON BAILEY, Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy 26 (2011).

74American convention on Human Rights, Article 6, July 18th, 1978; Universal Declaration of Human Rights, Articles 1& 4, Dec. 10th, 1948; International Covenant on Civil and Political Rights, Article 8, Dec. 16th, 1966; European Convention of Human Rights, Article 4 , Sept 3rd, 1953. 75People's Union for Democratic Rights v. Union of India & Others, A.I.R. 1982 S.C. 1473. 76INCA CONST. art. 39(f); Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802. 77Supra note 72 78Draft ART BILL 2014, § 2, cl. zs. 79The Indian Contract Act, § 23, INDIA CODE (1882). 18 | P a g e Memorial for Respondents

welfare is opposed to public policy80. The objective of surrogacy agreements is the sale of and profiteering from the sale of children. It must be recalled that according to Art. 2 (a) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 81, “sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”. According to the Council of Europe Convention on adoption82, no one shall derive any improper financial or other gain from an activity relating to the adoption of a child. It would be contrary to the dignity of the child, because adoption would become a market. It is due to similar concerns that the court only grants guardianship if it is satisfied that there has been no payment or reward as consideration for adoption 83. This was reiterated by the Bombay High Court in Eshan Kishar Acharjee v. Harish Chandr Chowdhry84. Commercial surrogacy is intrinsically contrary to these provisions. The Supreme Court of New Jersey stated in the highly debated case of In re Baby M85, where the surrogate mother refused to relinquish the baby that the surrogacy contract was against public policy and hence invalid. “Surrogacy agreements have been declared pernicious and void. It is been equated to an inhuman proceedings, a baby farming operation of a wholly distasteful and lamentable kind.”86

80Ratanchand Hirachand v. Askar Nawaz Jung, A.I.R. 1976 (A.P.) 112. 81Optional Protocol to the Convention on the Rights of the Child, art. 2, cl. a. , Feb.12, 2002. 82The Council of Europe Convention on adoption, art. 17 (Ap. 24, 1967). 83The Hindu Adoption and Maintenance Act, § 9, cl. 5, INDIA CODE (1956). 84Eshan Kishar Acharjee v. Harish Chandr Chowdhry, 1874(13) B.L.R App.42 (West Beng). 85In Re Baby M, 109 N.J. 36 (U.S). 86A v. C (1985) FLR 445 (U.K.). 19 | P a g e Memorial for Respondents

PRAYER Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities cited this Honourable Supreme Court may be pleased to adjudge and declare that: 1. The petition filed by the petitioners Maria, AMPAC, All Inca Mahila Samithi and Single Women (Professional Surrogates) Association is not maintainable under Article 32 of the Constitution of Inca. 2. The petition by the Association for Custodians of Traditional Ethics is maintainable under Article 32 of the Constitution of Inca 3. The Impugned Act is not in violation of Right to Equality under Article 14 of the Constitution. 4. The Impugned Act is not in violation of Right to Freedom under Article 19 of the Constitution 5. The Impugned Act is not in violation of Right to Life and Personal Liberty under Article 21 of the Constitution 6. The Impugned Act is not in violation of Right to Freedom of Conscience and Free Profession , Practice and Propagation of Religion under Article 25 of the Constitution 7. The Commercial Surrogacy for Foreigners (Miscellaneous) Act is constitutional and should not be struck down. 8. The practice of surrogacy is in violation of the Right against Exploitation guaranteed under Article 23 of the Constitution of Inca. And pass any other order in favour of the respondents that it may deem fit in the ends of justice, equity, and good conscience. All of which is respectfully submitted.

Place: Union of Inca

S/d_________________ Date: (Counsel for Respondents)

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