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Amendments required to make surrogacy workable, says Supreme Court while hearing petitions challenging the constitutionality of Surrogacy Act

The Supreme Court is set to take up all the matters challenging two legislation relating to reproduction via surrogacy on January 24. 


A public interest litigation, challenging the constitutionality of the Surrogacy (Regulation) Act, 2021 (‘Surrogacy Act’) and the Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART Act’), came up for hearing before the division bench of the Supreme Court comprising Justices Bela M. Trivedi and Ajay Rastogi.

During the hearing, Justice Rastogi remarked that the Surrogacy Act requires amendments to make its procedure more workable. It was told to the advocate-on-record, Mohini Priya, that the matter should be treated as a representation before the National Assisted Reproductive Technology and Surrogacy Board (‘National Board’), which holds expertise in this matter, against the challenges to the various aspects of the legislation.

However, the petitioner argued that the National Board could only deal with issues within the limited context of the Surrogacy Act. It cannot decide on the constitutionality of the legislation, including the issue that certain categories of persons have been unreasonably excluded, the petitioner argued. The bench has agreed to hear the petitioners on these issues.

Initially, Justice Rastogi was critical of the functioning of the National Board and even asked the Union Government if the Board meets regularly. It was informed that the National Board has been newly constituted under the recent Act. The bench was told that notices have been issued for the appointment of the members of the National Board. However, Justice Rastogi said that “larger the number of Board members, more is the problem to consolidate all this.

The Union Government argued that the court should not hear the challenge to the legislation because the National Board has been given a ‘peculiar’ advisory power. The National Board can advise the Union Government on the matter of policy. But the bench asked the Union Government to make a representation to the National Board, constituted last month, to consider the prayers of the petitioners and thereafter file a reply expeditiously.

The petitioner’s side also referred to a judgment of the Kerala High Court. In a significant judgment, a single judge bench of Justice V.G. Arun, in a batch of petitions challenging the upper eligibility limit of 50 years for women and 55 years for men prescribed under the ART Act, observed that the fundamental right of individuals to procreate and build a family based on personal choice is being restricted because of the upper age limit. Last month, the high court in Nandini K & Anr. versus Union of India & Ors. observed that “…the imposition of age restriction, without even a transitional provision, [is] irrational and arbitrary.”

The high court granted relief to the petitioners, who were undergoing ART services as on January 25, 2022, to continue their treatment. The concerns of the petitioners were that prior to the ART Act, the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India only prescribed a minimum age limit. As no upper limit was prescribed, the petitioners opted for ART services but all this came to a sudden halt with the enactment of the legislation. The Union Government submitted that the Department-Related Parliament Standing Committee on Health and Family Welfare considered all relevant aspects before prescribing the upper age limit. However, the court found that no deliberation was made before deciding the prescription of the upper age limit.

In view of the individual grievances, they have been sent for urgent consideration to the Union Government to refer to the National Board. The bench has insisted that all this be done expeditiously as time is of the essence in this case.

Advocate Priya informed The Leaflet that another petition, filed by more than 200 medical practitioners, has also been listed. It challenges several restrictive and unscientific provisions of the ART Act, raising concerns about the lack of provision for monetary compensation to oocyte donors in In vitro fertilization (‘IVF’), along with other restrictions, such as on the number of donations oocyte donors can make. According to the petition, it is a violation of the oocyte donor’s right to donate, which is part of her reproductive autonomy under Article 21 of the Constitution.

Further, she said that that apart from this, the petition has also challenged the provision wherein medical practitioners have been brought within the purview of the Indian Penal Code and offences have been made cognisable. It sends down a chilling effect on IVF practitioners across the country, dissuading them from performing their professional duties due to the fear of prosecution. All these issues have collectively brought IVF cycles through donor eggs to a complete standstill.

The Supreme Court has issued notice in this matter to the Union Government and has tagged along the surrogacy petition. It will take up all matters together on January 24.

About the petition

The petition was heard by a division bench of Justices Ajay Rastogi and C.T Ravikumar in Arun Muthuvel versus Union of India & Ors. The bench issued notices to the Union Ministry of Health and Family Welfare, the Union Ministry of Women and Child Development, and the Indian Council for Medical Research for their responses.

The petition primarily challenges sections 2(1)(e)14(2)2122(4) and 27(3) of the ART Act; Rules 3, 7 and 12 of the ART (Regulation) Rules, 2022; Sections 2(1)(h)2(1)(s)2(1)(r)2(1)(zd)2(1)(zg)4(ii)(a)4(ii)(b) and 4(iii)4(c)and 38(1)(a) of the Surrogacy Act; and Rules 3(1), 5(2), 6, 7 and 10 of the Surrogacy (Regulation) Rules, 2022.

The specific grounds of challenge are:

Inconsistency between the two legislation

There is an inconsistency between the two legislations. Both ART and Surrogacy Act are implemented to deal with similar subjects. However, they create arbitrary classifications such as prescribing the upper age limit. For instance, the ART Act defines ‘commissioning couple’ as an “infertile married couple” in which the age of the woman is between 21 and 50 years. Whereas, the Surrogacy Act defines ‘intending couples’ as those with a medical condition necessitating surrogacy, in which the woman is between 23 and 55 years old and the man is between 26 and 55 years old.

Further, ‘commissioning couples’ under ART Act is not defined by nationality, while couples under the Surrogacy Act are restricted to married Indian men and women. The ART Act defines a woman as any woman above the age of 21 years, whereas the Surrogacy Act puts women into two categories: first, under section 4(iii)(c)(I), as part of intending couple being a woman between the age of 23 and 50; and secondly as an ‘intending woman’ defined under section 2(1)(s) as an Indian woman who is a widow or divorcee between the age of 35 to 45 years.

Violation of fundamental rights 

There are challenges on the basis of violation of Articles 14 and 15 of the Constitution. The Surrogacy Act criminalises the act of choosing surrogacy for everyone except married couples and a small section of women. The ART Act and the Surrogacy Act exclude and discriminate, without any rationality, against same-sex couples and other members of the LGBTQI community, single women (those who are neither widowed nor divorced, and those who are widowed and/or divorced and less than the age of 35 or more than 45 years).

Also excluded are single men, couples suffering from secondary infertility, and couples in which either or both partner does not fall within the prescribed age brackets.

Blanket ban on commercial surrogacy

Most importantly, the Surrogacy Act imposes a blanket ban on commercial surrogacy, which is neither desirable nor effective. It denies them the opportunity to exercise agency over their right to give birth. A sudden and complete ban on commercial surrogacy is bound to create a black market and therefore more exploitation.

Under the Surrogacy (Regulation) Rules, 2022, the surrogate can attempt a surrogacy procedure for up to three cycles, whereas under Section 27(2) of the ART Act, an oocyte donor can donate only once in her lifetime. This implies that the number of egg donors will be totally restricted and the costs of obtaining the oocyte would be exorbitant.

The Surrogacy Act only permits gestational surrogacy where the child should not be related to the surrogate mother. However, the definition of a surrogate mother requires her to be genetically related to the “intending couple” or intending woman. There may be cases where the surrogate mother is related to the child as well as to the intending couple. The above two definitions are thus self-contradictory.

Exorbitant fees to avail services 

The fee for the registration of an ART clinic level 1 is Rs. 50,000, and for registration of a level 2 ART Clinic, it is Rs. 2 lakhs. The exorbitant fees provided for registration of fertility clinics are absolutely unreasonable, unjustified and extremely onerous upon medical practitioners.

The Surrogacy Act provides for the constitution of a District Medical Board in the Explanation to section 4(iii)(a)(I). However, neither the parent Act nor the relevant Rules provide for who would constitute such a board, how would its members be selected or elected, or for how long would such members be part of such a District Medical Board.

Breach of privacy

Surrogacy is a private affair and the precondition of a genetically related surrogate mother would be in violation of the basic right to privacy and reproductive autonomy of infertile couples. It violates Article 21 of the Constitution.

The Surrogacy Act requires the public dissemination of varied information about a couple’s infertility in the form of a certificate sought from the District Medical Board under section 4(iii)(a)(I) and the order sought from Magistrate’s court under sections 4(iii)(a)(II); this would violate their right to privacy. The ART Act also, under section 22, mandates the provision of insurance coverage for oocyte donors, which would lead to the revealing of the identity of the donor, especially when there is an absence of a provision protecting the same.