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CRITIQUE OF THE REPRODUCTIVE RIGHTS OF WOMEN VIŚ-A-VIŚ THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY ACT, 2021

Abstract
This article provides a critical analysis of the intersection between the reproductive rights of a woman and two key pieces of the legislation, i.e., the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology Act, 2021. This article, by thorough analysis of the legislative framework of both the acts, seeks to evaluate the impact on the reproductive autonomy of the woman, address the ethical concerns related to surrogacy and assisted reproductive technologies, current societal perspectives, and identify socio-legal challenges in implementing these regulations. These laws aspire to shield the rights and interests of all the parties involved in the practices, inclusive of the intended parents, the surrogate mothers, and the children born through such procedures. However, there is a requirement to address the complex ethical considerations and practical challenges in the implementation of these regulations. By highlighting such challenges, this article aspires to inform the stakeholders about the practical implications of these regulations and pave the way for discussions on the plausible solutions. Through critical analysis, this article focuses on contributing to the discourse on reproductive rights and assist in shaping future legislative efforts in this domain. The Surrogacy (Regulation) Act,2021 and the Assisted Reproductive Technology Act, 2021, represent notable watershed in the legal regulation of the surrogacy and the ART procedures in India.

Keywords – Reproductive Rights, Surrogacy, Assisted Reproductive Technology, Legislation, Women’s Autonomy, Ethical Consideration, Societal Perspective, Socio-Legal Challenges. 

Introduction
The Surrogacy (Regulation) Bill[1], first introduced in the Lok Sabha on 15th of July, 2019, was sent to a select committee and après a through revision of the Bill, the report was proposed before the standing committee on the 5th of February, 2020. Later, during the year 2021, winter season of the Parliament, both the Houses of the Parliament passed the bill which was duly acknowledged and signed by the President and enforced in January, 2022. Surrogacy, in the Surrogacy (Regulation) Act,2021[2] is defined as a practice where a woman births a child for a couple who have been medically certified to be an infertile couple and who intend to become parents, with an intention to hand it over to such parents after the birth of the child. The Surrogacy (Regulation) Act,2021, lays the foundation for the regulation of surrogacy in India and sets up the metrics of competence for the intending parents and surrogate mothers, silhouetting the process for acquiring legal identification of surrogacy agreements as well as mandating the establishment of surrogacy boards to administer the application of the law.

The Assisted Reproductive Technology Act, introduced in the Lok Sabha in September, 2020, was sent to a standing committee for revision. Later, along with the Surrogacy Act, it was passed in both the Houses of the Parliament, during the winter season of the Parliament in December,2021 and enforced in January, 2022. The Assisted Reproductive Technology, in the Assisted Reproductive Technology Act, 2021, is defined as all techniques used to attain a pregnancy by handling the sperm or egg cells outside the human body and transferring the embryo into the reproductive tract of the woman, inclusive of, sperm donation, IVF (In-Vitro-Fertilisation), where the sperm is fertilised in a lab and the child to be born is biologically not related to the surrogate. The Assisted Reproductive Technology Act, 2021, governs the practice of the assisted reproductive technologies in India and sets norms for the functioning of fertility clinics and ART procedures, inclusive of the requirements for informed consent, screening of the gamete donors, and the storage and disposal of gametes and embryos. The ART Act also established a national registry for ART clinics and mandated the formation of a national advisory board to surveil assent with the law.

Legislative Frameworks
The Surrogacy (Regulation) Act,2021 bestows various rights and protective shields on the surrogate mother as well as the child born through the process of surrogacy. According to the Surrogacy (Regulation) Act,2021, a couple should obtain certificates of competence and quiddity to possess a child. The couple is determined as ‘eligible’ if they have been espoused for five years, the wife aged between 25-50 and the husband aged between 26-55 years. The couple must not possess any living child, exception being possessing a child with special needs. The couple can obtain an ‘essential’ certificate if proven infertile of either partner certified by a District Medical Board, and an order of lineage and custodianship of the surrogate child, passed by a Court of the Magistrate. They must also possess an insurance indemnification for 16 months for the surrogate mother, securing any puerperium intricacies. A surrogate mother must be a close relative of the couple, aged between 25-35 years and a married woman with a child of her own. The surrogate mother must also possess a certificate of Medical and Psychological fitness for surrogacy.

Surrogacy is authorized only for the altruistic purposes or for the couples who have proven infertility or diseases and not for the commercial purposes inclusive of sale, prostitution, or any other form of exploitation. In legislative debates, several members of the parliament illuminated the requirement to introduce the proposed regulations in twain with the Section 377 as well as the Transgender Persons(Protection of Rights) Bill, whereas, some members of the parliament accentuated on the fact that one of the committees endorsed allowing access for single women and live-in couples, but the legislation only partly addressed this concern by allowing the ever-married single women and not others inclusive of single men, same-sex couples or unmarried couples.[3] Section 3 of the Surrogacy (Regulation) Act,2021 imposes strict regulations on the surrogacy clinics and practitioners. It prohibits the unregistered clinics from conducting the procedure of surrogacy and bans any form of commercial surrogacy. This section mandates that only qualified personnels can be employed, and surrogacy procedures must be performed only at the registered clinics. This section prohibits Advertising inducing surrogacy or promoting commercial surrogacy. For the abortion during the surrogacy, a written consent from the surrogate and authorization from the appropriate authority is required. This section provides that the storage of embryos or gametes for surrogacy is prohibited, except for the legal purposes like IVF. Section 4 of the Surrogacy (Regulation) Act,2021, prohibits the commercial surrogacy and allows only altruistic surrogacy for the intending couples who cannot conceive a child due to either of the partners being infertile. Section 5 of the Surrogacy (Regulation) Act,2021, prohibits the conduction of the procedure of surrogacy and states that no person shall encourage to conduct any surrogacy procedure on a woman. Section 6 of the Surrogacy (Regulation) Act,2021, states that a no surrogacy procedure is to be conducted without the proper knowledge of the surrogate about the procedure and consequences and a written informed consent of the surrogate mother. Section 11 of the Surrogacy (Regulation) Act,2021, prescribes that the establishment of surrogacy clinics require registration under the Surrogacy (Regulation) Act,2021. The Applications must be submitted to the appropriate authority along with the prescribed fees and the existing clinics conducting surrogacy must apply for the registration within 60 days of the appointment of the authority or cease to operate after six months from the commencement of the act. It states that the registration is contingent upon the clinic meeting prescribed standards for facilities, equipment, manpower, infrastructure, and diagnostic efficiency. Section 38 of the Surrogacy (Regulation) Act,2021 prohibits the commercial surrogacy, exploitation of surrogate mothers and children born through the procedures of surrogacy. Section 39 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for the contravention of the provisions of the Act as imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. Section 40 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for not adhering to the altruistic surrogacy as imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years with fine which may extend to ten lakh rupees.[4]
The Surrogacy (Regulation) Act,2021, has amassed venerable critique for its cliquish demeanour towards the LGBTQ+ Community and single individuals seeking for parenthood through surrogacy. The Surrogacy (Regulation) Act,2021 authorizes only heterosexual married couples recognized under the Indian Law to engage in the procedure of surrogacy, effectively prohibiting the same-sex and non-binary couples, as well as single fathers, from accessing these reproductive procedures. This act overtly stipulates that surrogacy procedures are reserved for the heterosexual married couples, reinforcing traditional norms, and excluding diverse family structures. This exclusion is particularly glaring considering that single parents, who account for the 20%[5] of the surrogacy users, are also denied access under this Act. Such restrictive provisions reinforce societal prejudice and perpetuate discrimination against LGBTQ+ individuals and single parents seeking to build families through surrogacy. The stance of the administration on the surrogacy for LGBTQ+ individuals have been marred by overt homophobia. Former Minister of External Affairs of India, Sushma Swaraj, has been vocal in her hostility to surrogacy for homosexuals, adducing culture norms and “Indian Ethos”[6]. Such statements reflect the entrenched societal biases and illuminates the challenges faced by the LGBTQ+ individuals and single parents.[7]
According to the Assisted Reproductive Technology Act, 2021, every clinic and bank of ART must be registered with the National Registry of Banks and Clinic of India which shall conserve a central database with all the requisite details of such institutions. Section 15 of the Assisted Reproductive Technology Act, 2021 mandates the Registration of Assisted Reproductive Technology or Assisted Reproductive Technology Bank. The validity of registration of such clinics and banks is for 5 years and can be renewed for another 5 years which shall be subjected to cancellation or suspension in case of violations of the provisions of the ART Act. Section 17 of the Assisted Reproductive Technology Act, 2021 prescribes the validity and renewal of the registration. A registered bank of ART can screen, collect as well as store the semen from men and eggs from women both aged between 21 to 55 and 23 to 35 respectively. Section 28 of the Assisted Reproductive Technology Act, 2021 states the procedures as well as the standards of storage and handling of human gametes and embryos. According to the provisions of this act, the female donors need to be married with at least one child of their own. A woman, in her entire lifetime, can only donate up to 7 eggs. Section 22 of the Assisted Reproductive Technology Act, 2021 states the provision of the Written Informed Consent. The written consent of both the couples as well as the donor is required for the commencement of the procedures of the ART and the couple seeking the procedure of ART must provide insurance indemnification for the female donor in case of loss, damage, or death of the donor. The donor does not retain any lineage or custodianship over the child to be born and such child is to be deemed as the biological child of the couple. The clinic and banks conducting the procedure of ART are prohibited from advertising or offering the sex-selective ART. Section 32 of the Assisted Reproductive Technology Act, 2021 prescribes the punishment for the sex-selective assisted reproductive technology. Section 26 of the Assisted Reproductive Technology Act, 2021, prohibits the pre-natal diagnostic to determine the sex of the child as well as prescription of anything that shall ensure the probability of an embryo to be of a particular sex. Involvement of such clinics and banks in such offenses is punishable with imprisonment of a term not less than 5 years which may extend to 10 years and/or a fine not less than Rs. 10 Lakhs which may amount to Rs. 25 Lakhs.[8] Section 18 of the Assisted Reproductive Technology Act, 2021, states that non-compliance with the rules and regulations of the Act shall result in the Suspension or Cancellation of the registration.[9]
Article 21 of the Constitution of India provides the guarantee to the right to life and personal liberty to all individuals inclusive of the right to live with dignity, which the courts interpreted to encompass various aspects of the reproductive rights, such as the right to access healthcare services and reproductive healthcare. Article 19 of the Constitution of India provides freedom to the intended couples to make informed choices about the reproduction and family planning. Article 15(3) of the Constitution of India enables the state to make special provisions concerning the women and children. Article 39(a) of the Constitution of India directs the state to ensure that citizens, men, and women have equal rights to an adequate means of livelihood, ensuring the protection of the reproductive rights of the women and addressing the gender-based discrimination in the reproductive healthcare.[10]

Ethical Considerations
The ethical realm whirling around the surrogacy as well as the ART are intricate as well as pugnacious, comprehensive of various concerns that decussate with the societal values, medical ethics, and human rights principles. While these technologies offer propitious avenues for individuals and couples struggling with infertility to achieve parenthood, they also raise abstruse ethical questions. One of the foremost ethical considerations is the plausible commercialization of the human body intrinsic in surrogacy procedures. Experts contend that the complicity of financial transactions in surrogacy can lead to the abuse of economically disadvantaged women who may feel coerced to become surrogate mothers for the purpose of mere financial gain. This raises the apprehension about the accord and agency of surrogate mothers, as they steer complex socio-economic factors that may impact their decision-making. Furthermore, the commercialization of surrogacy can eternalize the inequalities and stiffen the conception of the body of the women as commodities that can be bought and sold. This challenges the principles of reproductive accord, which accentuated the rights of the individuals to make informed choices about their reproductive lives without intimidation or insistence. Equilibrating the accord of intended parents with the welfare and accord of surrogate mothers is a central ethical predicament in the regulation of surrogacy.  Additionally, the use of ART procedures such as Preimplantation Genetic Diagnosis (PGD) raises ethical distress regarding the selection of coveted attribute or idiosyncrasy in offsprings. While PGD can help identify the genetic anomalies and prevent the dissemination of inbred diseases, its use for non-medical purposes, such as selecting for gender or specific physical attributes, raises ethical questions about the possibilities for eugenic practices and the protraction of the social inequalities.

Moreover, the welfare of the surrogate mothers and children born through the procedure of ART is a preponderant ethical consideration. Surrogate mothers may confront physical and emotional threat kindred with pregnancy and childbirth, as well as plausible adversities in steering through the complex emotional flux of surrogacy procedures. Cinching the protection of the rights of the surrogate mothers, access to panoramic healthcare, and psychological assistance is essential to sustain ethical standards in surrogacy. Similarly, the welfare of children born through the procedures of ART, inclusive of the issues of individuality, consanguinity, and the right to know one’s own genetic heritage, requires careful considerations. Ethical guidelines accentuate the significance of lucidity, honesty, and respect for the best interests of the child in all the aspects of ART, including the donor conception and surrogacy.

Socio-Legal Challenges
The implementation of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021, faces various socio-legal implications that impede their efficacies. The major challenge is the sparse enforcement mechanism. While legislations exist, enforcement at the ground level can be challenging due to various factors such as lack of resources, capacity, and coordination amongst the regulatory authorities. The issue deteriorates the intended regulatory framework, leaving crevices that may be tyrannized or result in inconsistent application across the country.

Moreover, there is ubiquitous lack of awareness and education about the reproductive rights and responsibilities amongst the general population, healthcare providers, and even legal professionals. This deficit contributes to incomprehension, misapprehension, and non-compliance with the provisions laid out in the Acts. Addressing this gap requires strenuous efforts to propagate scrupulous information, raise awareness about the rights and responsibilities, and promote ethical practices in surrogacy and ART. The dissimilitude in access to healthcare and legal resources present another significant challenge. While the legislation aims to ensure equitable access to reproductive services, socio economic factors, geographic locations, and systematic barriers can hinder access for certain tranche of the population. Marginalized communities, rural populations, and economically destitute individuals may face challenges in accessing quality healthcare services and legal support needed to steer the surrogacy and ART landscape[11].
Furthermore, the evolving nature of the reproductive technologies and shifting social norms necessitate continuous review and adaptation of existing legislation. As new technologies emerge and societal attitudes towards reproduction evolve, gaps in regulation may emerge, requiring timely updates to ensure that the legislation remains relevant and effective. This ongoing process of review and adaptation is essential for safeguarding the reproductive rights of the women, addressing emerging ethical concerns, and maintaining public trust in surrogacy and ART practices. There are instances where the implementation of surrogacy regulations has faced challenges in India, inclusive of the exploitation of surrogate mothers[12] and the commercialization of surrogacy[13], which led to the legislative reforms aimed at the protection of the rights of the surrogate mothers and ensuring ethical practices in surrogacy procedures.
Addressing the socio-legal challenges facing the implementation of surrogacy and ART regulations requires a multi-faceted approach involving improved enforcement mechanisms, enhanced awareness and education efforts, and measures to alleviate disparities in access to healthcare and legal resources. Additionally, ongoing review and adaptation of legislation are crucial to keep pace with elevation in reproductive technologies and evolving societal norms, ultimately safeguarding the reproductive rights, and promoting ethical practices in surrogacy and ART.
It was argued that the ban on the commercial surrogacy showed the centre was inaccessible with the ground realities. Various villages in Gujarat are known for commercial surrogacy. Anand, known for the Amul’s Diary Factory, according to the reports has also attained fame as India’s ‘surrogacy capital’, offering remunerative monetary opportunities for penurious women. A surrogate earns around Rs. 3 to 5 lakhs per pregnancy, reliant on the delegating parents, and the total costs of making a baby is roughly Rs. 10 lakhs. In Mumbai, a surrogate mother is paid around Rs. 12 to 15 lakhs for one surrogacy, of which the surrogate mother earns Rs. 3 to 4.5 lakhs. Such practices have now been abolished with the implementation of these two Acts but still in some parts of the country, such practices are still prevalent for financial gains.[14]

Case Laws

  1. Jan Balaz Vs. Anand Municipality[15]

This case revolves around a German couple who hired a surrogate mother named Marthaben Immanuel Khrishti who gave birth to twins. This couple worked in the US and thus their twins needed an Indian Passport to travel. The two twins did not possess citizenship as its process was litigating in the courts. So, the passport authorities did not grant the passports to the twins and in Germany, there was no law for surrogacy. The Supreme Court of India, did not grant permission to provide them with the passports but granted an exit permit to the children and the German authority allowed them to adopt the children and contest for their rights.

  1. Justice K.S. Puttaswamy Vs. Chandigarh Administration[16]

In this case, the court held that there is a violation of the right to privacy in acquiring and furnishing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district medical board and this fundamental right is needed to protected.

  1. Shweta Janardhan Barve Vs. State of Kerala[17]

    The court in this case, ordered the DIG of Thiruvananthapuram to investigate a proposed surrogate mother and her family to ensure altruistic surrogacy. The court held that The Surrogacy (Regulation) Act, 2021 allows only altruistic surrogacy, where the surrogate mother does not receive any monetary compensation[18].

Analysis
The analysis of the Surrogacy (Regulation)Act, 2021, and the Assisted Reproductive Technology Act, 2021, reveal the labyrinthine intermesh between the legislative manoeuvre and the complicated domain of the reproductive rights of the women. These acts are responses to a growing industry teem with the ethical quandary, societal implications, and legal crevice. While their intention is to truncate the plausible abuse and ensure ethical standards is assisted reproduction, their implementation and effects on the reproductive accord necessitate a closer analysis. Regulation is indeed vital in alleviating illegal and exploitative practices that have been extensive in the surrogacy industry, where susceptible women often have been subjected to intimidation or inadequate compensation. The prohibition of commercial surrogacy under the Surrogacy (Regulation)Act, 2021 aims to prevent the commercialization of the bodies of women and to prioritize the altruistic surrogacy. Similarly, the Assisted Reproductive Technology Act, 2021 seeks to establish standards for the operation of ART clinics and the handling of genetic material, aspiring to ensure the safety and dignity of all involved parties. However, the regulatory framework must be balanced to safeguard the accord of the women and ensure the equitable access to reproductive healthcare. The rigid eligibility criteria for surrogate mothers, for instance, may fortuitously exclude women from the destitute communities who rely on the surrogacy as a sole mean of financial support. Additionally, the accentuation on the altruistic surrogacy may limit the options available to women who wish to undertake surrogacy as a paid arrangement, thereby constraining their reproductive choices. Ethical considerations loom large in the discourse surrounding surrogacy and assisted reproductive technology. The principles of accord enhance the rights of the individuals to make informed decision about their bodies and reproductive futures. However, concerns arise regarding the potential exploitation of surrogate mothers, especially in contexts where economic dissimilitude are prominent. Their regulations must strike a delicate balance between protecting vulnerable women and respecting them in making reproductive choices.

Conclusion
The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021 demonstrate venerable legislative endeavours expecting at tweaking surrogacy and ART practices in India. These laws were sanctioned to address various misgivings encompassing reproductive technologies, inclusive of the issues related to the exploitation, commercialization, and ethical considerations. The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy in India, permitting as it were altruistic surrogacy procedures for the citizens of India. The altruistic surrogacy concerns a surrogate mother carrying a child for the intended parents without budgetary recompense past restorative costs and insurance indemnification. The act also establishes a National Surrogacy Board to arbitrate the direction of surrogacy strategies and execute moral guidelines. Similarly, the Assisted Reproductive Act, 2021, aims to regulate the practice of ART procedures such as IVF, sperm and egg donation, and foetus transfer. It sets guidelines for the ratification of ART clinics and traces the rights and duties of parties involved in ART procedures, including intended parents, donor, and medical professionals. However, while these legislative measures are intended to shield the reproductive rights and prevent exploitation, they have also provoked debates regarding their impact on access to reproductive services and the accord of individuals seeking fertility treatments. Experts contend that the restrictive nature of the les may limit access to surrogacy and ART services for individuals who are unable to conceive naturally, particularly those from the oppressed communities. Additionally, concerns have been raised regarding the exclusion of the same sex couples and single individuals from accessing surrogacy and ART services under the new regulations, the laws currently only permit heterosexual couples who have been married for at least five years to pursue surrogacy, raising questions about inclusivity and discrimination based on sexual orientation and marital status. Furthermore, the implementation of the Surrogacy (Regulations)Act, 2021, and the Assisted Reproductive Technology, 2021, faces challenges related to enforcement, monitoring, and awareness. There is a need for robust mechanisms to ensure compliance with the regulations, as well as adequate training and education for healthcare professional and the public regarding the rights and responsibilities involved in surrogacy and ART procedures. Further, the policymakers, healthcare professionals, and advocacy groups must collaborate to address these challenges and ensure that legislative measures effectively uphold the reproductive rights while promoting ethical practices and inclusivity. By working towards the inclusive and equitable reproductive policies, India can advance the cause of reproductive justice and ensure that all individuals have the opportunity to exercise their fundamental right to build families on their own terms, while also addressing moral concerns and societal realities.

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Written By – Sruti Sikha Maharana

[1] https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019

[2] https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf

[3] https://indianexpress.com/article/opinion/columns/on-surrogacy-indian-law-goes-a-step-further-but-not-far-enough-9187014/

[4]https://www.indiacode.nic.in/handle/123456789/17046#:~:text=An%20Act%20to%20constitute%20National,connected%20therewith%20or%20incidental%20thereto.

[5] https://feminisminindia.com/2022/02/02/the-surrogacy-regulation-act-2021-another-attempt-to-reproduce-a-heteronormative-patriarchal-society/

[6] https://www.thequint.com/news/india/union-cabinet-surrogacy-regulation-bill-2016-sushma-swaraj-against-our-ethos-commercial-surrogacy

[7] https://theleaflet.in/the-surrogacy-bill-2016-a-step-back-for-inclusivity/

[8] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece

[9]https://www.indiacode.nic.in/handle/123456789/17031?locale=en#:~:text=An%20Act%20for%20the%20regulation,health%20where%20assisted%20reproductive’%20technology

[10] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[11] https://www.aljazeera.com/news/2014/3/27/indian-surrogate-mothers-suffer-exploitation#:~:text=But%20in%20a%20blatant%20violation,lose%20out%20in%20the%20bargain.

[12] https://www.tribuneindia.com/news/archive/comment/surrogates-victims-of-abuse-exploitation-712289

[13] https://timesofindia.indiatimes.com/blogs/voices/commercialization-of-surrogacy-in-india-the-effects-of-globalisation/

[14] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece

[15] https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1ebh78ThKZjolGwdnkp7ypdJtCQ2lRsWw4rgO8Mgs5

[16] https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights

[17] https://www.verdictum.in/pdf_upload/shweta-barve-v-keralawatermark-1556613.pdf

[18] https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-kodakara-hawala-heist-ed-not-super-investigating-agency-their-role-comes-after-police-or-cbi-registers-fir-reserves-judgment-257654?infinitescroll=1

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A Landmark Ruling: Karnataka High Court Breaks Age Barriers in Surrogacy Applications, Pioneering the Triple Test in Response to a ‘Unique Situation

Karnataka High Court

H Siddaraju & ANR  V. Union of India & others

WRIT PETITION No. 5861 of 2023 (GM-RES)

Bench- HON’BLE MR. JUSTICE M. NAGAPRASANNA

Decided On 21-04-2023

Facts of the case-

The petitioners brought before the court their concerns regarding the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.

Section 2(1)(zg) provides a definition for the term ‘surrogate mother,’ which pertains to a woman who consents to carry a child through surrogacy, wherein the child would be genetically related to the intending couple through the implantation of an embryo in her womb. The section further requires the surrogate mother to fulfill all other specified conditions.

Section 4(c)(I) mandates that an intending couple must be married, with the woman not having exceeded 50 years of age, and the man not having exceeded 55 years of age. The mother involved in the present case falls within the confines of the law as she is still below 50 years of age.

The petitioners put forth their argument, stating that they were a contented family comprising a couple with a 23-year-old child, who tragically lost his life in a road accident. Following the demise of their only child, the mental health of the second petitioner (wife) significantly deteriorated due to severe depression. The couple then sought to expand their family through adoption but were informed of a lengthy waiting period of 3 to 4 years. Upon further consultation, they were advised that surrogacy was their only viable option to have another child.

Consequently, the sister-in-law of the first petitioner, aged 35, expressed willingness to donate her egg, while a close family friend, aged 25 and already a mother of two, volunteered to act as a surrogate mother. The first petitioner’s sperm would be used to fertilize the donated egg. Importantly, no financial transactions were involved in this entire process, as the individuals involved were closely related or considered to be akin to family.

The petitioners argued that the age restriction stipulated by the Act lacks a rational basis and should be eliminated. They contended that the age limitation should be removed entirely for both the husband and wife who form the intending couple.

In light of the aforementioned facts, the petitioners seek the court’s intervention to reconsider and strike down the provisions of the Act that they find objectionable.

 

Judgement

A single judge bench of Justice M Nagaprasanna addressed the issue of surrogacy eligibility criteria under the Surrogacy (Regulation) Act, 2021. The court allowed the petition filed by H Siddaraju and his wife, but only partially. The couple was seeking permission for surrogacy, despite the husband being 57 years old, which exceeded the age limit specified in the Act.

The court acknowledged that there was a rationale behind the age cutoff and declined the petitioners’ argument to remove it. However, it recognized the need to address the situation at hand and “iron out the creases in the legislation.” The court emphasized the role of constitutional courts in reviewing laws without altering their content, in order to deal with unforeseen circumstances.

To allow the petitioners to undergo surrogacy, the court devised a “triple test theory” comprising three tests: genetic, physical, and economic. The first test involved the husband undergoing a genetic test to ensure the health of his sperm, thus minimizing the risk of any disorders or health issues in the child.

The second test focused on the couple’s physical capacity to care for the child, not necessarily in terms of physically carrying the child everywhere, but rather their ability to responsibly manage the child.

The third test examined the couple’s economic stability and their ability to provide for the child without subjecting them to financial hardship. The court suggested that the couple submit affidavits disclosing their assets and liabilities to assess their economic capacity. Additionally, the court emphasized the need for future investments in the child’s well-being, leaving the specifics to be determined by the appropriate authority.

The court clarified that its observations and directions were specific to the circumstances of the case and did not grant general discretion to the boards or authorities to issue eligibility certificates in unique situations. It urged the legislature to consider amending the Act to address such situations comprehensively.

The court also expressed concerns about a provision in the Act that required the surrogate mother to be genetically related to the intending couple. It argued that altruistic surrogacy should involve an outsider as the surrogate, and the requirement of genetic relationship went against the principles and logic behind the legislation.

The court acknowledged that the overall challenge to the provisions of the Act was pending before the Supreme Court, where the National Board of Surrogacy had been asked to respond to the contentions raised. Therefore, the court could not strike down the provisions as requested by the petitioner at that stage, as any decision on the matter would be subject to the Supreme Court’s further orders.

Finally, the court directed the State Surrogacy Board or appropriate authority to consider the affidavit filed by the petitioners, taking into account the court’s observations, and proceed accordingly within a specified timeline, considering the advancing age of the first petitioner.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

click here to view judgement

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