After allowing single-parent surrogacy since 2005, the union ministry of health and family welfare now contemplates restricting the right to only Indian infertile couples, subject to any conflict in the law relating to adoption of Indian children by foreigners.
The 2005 guidelines of the Indian Council of Medical Research (ICMR) draft assisted reproductive technology (surrogacy) bills of 2008, 2010 and 2013 allowed foreign single-parent surrogacy in India.
It has stopped the Punjab and Haryana high court from interfering in the case of Sudanese national Shihabeldin’s seeking single-parent surrogacy rights in India. The petitioner had challenged the union ministry of home affairs guidelines of July 9, 2012, the restrict surrogacy to men and women married for at least two years.
The division bench comprising chief justice Sanjay Kishan Kaul and justice Arun Palli said: “We are not inclined to issue a writ in favour of the petitioner, a foreign citizen, who seeks single-parent surrogacy as the law in this regard itself is sought to be enacted and it is at a final stage.”
The court added: “However, the conflict for the interim period is resolved by all the respondents (union ministries) being in unison that in the interregnum period, the arrangement which would prevail would not permit the single-parent foreign citizen surrogacy. We are, thus, confronted with a situation where undoubtedly there is a complex issue at hand of surrogacy qua single parents who are foreign citizens. There would have to be checks and balances in such a situation. What would be the final version of the Act… would in tur n depend on the final proposal of the Cabinet… to be placed before the House (Parliament).”
Appearing for the petitioner, advocate Anil Malhotra argued that not-permitting single parent sur ro g acy would violate petitioner’s right to life, privacy and reproductive autonomy. Appearing for the union health ministry, advocate Onkar Singh Batalvi had submitted that foreign nationals would not be allowed sur ro g acy rights in India to prevent exploitation of Indian women, who might be tempted to take the risk in the face of financial hardships.
WHAT IS SURROGACY
An ar rangement in which a woman car ries and delivers a child for another couple or person.
The intended parents may arrange for a surrogate pregnancy because of female infertility or other medical issues that make pre gnancy or delivery impossible or otherwise undesirable; or because the intended parent or parents are male.