Blanket ban on commercial surrogacy would lead to exploitation of women, says PIL in Supreme Court

The petitioner has prayed for the issue of an appropriate writ to recognise the rights of women other than those married and above the age of 35 years to avail surrogacy,

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ON September 26, a public interest litigation ('PIL') challenging the vires of the Surrogacy (Regulation) Act, 2021 ('SRA') and the Assisted Reproductive Technology (Regulation) Act, 2021 ('ART Act'), came up for admission hearing before the Supreme Court division bench of Justices Ajay Rastogi and C.T Ravikumar in Arun Muthuvel versus Union of India & Ors.

The bench, after hearing the petition, 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), 21, 22(4) and 27(3) of the ART Act, Rules 3, 7 and 12 of the Assisted Reproductive Technology (Regulation) Rules, 2022, Sections 2(1)(h), 2(1)(r), 2(1)(s), 2(1)(zd), 2(1)(zg), 4(ii)(a), 4(ii)(b), 4(iii), 4(c), 8 and 38(1)(a) of the SRA, and Rules 3(1), 5(2), 6, 7 and 10 of the Surrogacy (Regulation) Rules, 2022.

The specific grounds of challenge are:

• Inconsistency in the two legislation:
  • The two legislations, ART and SRA, are implemented to carter similar subjects. However, both create arbitrary classifications in subjects like age threshold. For instance, the ART Act defines a 'commissioning couple' as an 'infertile married couple' where the age of the woman is between 21 and 50 years. On the contrary, the SRA defines 'intending couples' as those who have a medical condition necessitating surrogacy, where the woman is aged between 23 and 55 years and the man is aged between 26 and 55 years.
  • Commissioning couples under the ART Act are not defined by nationality, while couples under the SRA are restricted to married Indian men and women.
  • The ART Act defines a woman as any woman above the age of 21 years, whereas SRA 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 years, 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 Articles 14 and 15 of the Constitution:
  • The SRA criminalises the act of choosing surrogacy for everyone apart from married couples and a small section of women.
  • The ART Act and SRA exclude and discriminate, without any rationality, against same-sex couples and other members of the LGBTQI community, single women who are neither widowed nor divorced, single women who are widowed and/or divorced and less than the age of 35 years or more than 45 years old, single men, couples suffering from secondary infertility, and couples where either or both partners do not fall within the defined age brackets.
  • The SRA imposes a blanket ban on commercial surrogacy, which is neither desirable nor may be effective. It denies commercial surrogates the opportunity to exercise agency over their right of giving 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, 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 SRA 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.
  • The fee for registration of a level 1 ART clinic is Rs. 50,000, and that for registration of a level 2 ART clinic is Rs. 2 lakhs. Such exorbitant fees provided for registration of fertility clinics are absolutely unreasonable and unjustified, and extremely onerous upon medical practitioners.
  • The SRA 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.

• Violation of Article 21 of the Constitution:
  • Surrogacy is a private affair, and the pre-condition of a genetically related surrogate mother would be in violation of the basic right to privacy and reproductive autonomy of infertile couples.
  • The SRA requires a variety of public dissemination of 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 a Magistrate's court, under section 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.

Advocate-on-record Mohini Priya, who filed and argued the petition, has expressed concern that the SRA confines surrogacy to heteronormative Indian married couples. It excludes several other alternative family arrangements like live-in couples, same-sex couples and single parents, which have time and again been given legal recognition by the Supreme Court.

Certain provisions under the SRA, as per the petition, that mandate only a close relative to act as a surrogate, is a major compromise on the privacy of intending couples. Apart from that, imposing a blanket ban on commercial surrogacy while allowing only altruistic surrogacy through a close relative, will inadvertently result in the exploitation of a young vulnerable woman within the family by coercing her to act as a surrogate, the petition avers.

The petitioner, a Chennai-based In vitro fertilization and fertility doctor, has prayed for the Supreme Court to issue an appropriate writ to recognise the rights of women other than those married and above the age of 35 years to avail of surrogacy, strike down the definition of a couple under section 2(1)(h) of the SRA and of commissioning couple in section 2(1)(e) of the ART Act, rephrase the definitions of gestational surrogacy and a surrogate mother in order to align them with each other, and allow compensatory surrogacy within a defined legal structure and framework, among other things.