Women do not have a legal right to become surrogate mothers for commercial gains, the government told the Supreme Court on Wednesday.
A woman has every right to start a family within a marriage but her reproductive rights are protected and should be within the set legal framework, it said opposing an application challenging the Centre’s notification banning the import of human embryos except for research purposes.
“There is no bar for right to marry and to find a family within the marriage with the right of reproductive autonomy and the right to privacy. The reproductive rights are protected by the law of the land,” an affidavit filed by the ministry of health and family welfare said. It said women needed to be protected from illegal commercial surrogacy used by many for their monetary benefits. “There has been widespread concern over exploitation of surrogates and surrogacy,” the affidavit said.
The ministry, however, clarified there was no bar on altruistic surrogacy for “needy infertile married Indian couples” but it was for the “State Health Authority” to decide if their need was genuine and if such couples could avail of surrogacy.
Prior to the ban on commercial surrogacy, India was a major centre for foreign couples looking for surrogate mothers. Many former and prospective surrogate mothers had moved the top court demanding to be heard, contending the November 2014 notification banning commercial surrogacy left them jobless.
Rejecting their contention, the government said, “The applicants (surrogate mothers) do not acquire any separate right to become surrogate mother(s). As citizens of India, they are governed by the instructions of Union of India.” The surrogate mothers should not be heard as they were not directly affected by the ban, it added.
The Centre also rejected the surrogate mothers’ submission that the fundamental right to life and liberty “incorporates within itself the right to autonomous reproduction and each individual of legal age has rights to take her own decision to become or not to become surrogate”. The SC is hearing a PIL seeking a ban on surrogacy.