The Delhi High Court has turned down the appeal of an Australian couple to have sex selective surrogacy in India and said it cannot make exception to the law to accommodate the “desire” of a foreigner to have a “balanced family” comprising a male and a female child.
A division bench of Chief Justice NV Ramana and Justice Manmohan clarified that rules of the Pre-Conception and Pre-Natal Diagnostic Techniques Act (Prohibition of Sex Selection) (PCPNDT) Act, 1994, which prohibits child sex determination, applies to both Indian and foreign nationals seeking to conceive a child in the country through surrogacy.
An Australian couple was seeking the court’s direction to the Delhi family welfare department to issue them a no-objection certificate so that they can conceive two children of different sex through surrogacy.
The couple, who cannot have any biological children of their own, had opted for gestational surrogacy — a procedure by which a surrogate mother carries a fertilized donor egg or embryo till the baby is born.
While gestational surrogacy is legally available in only three countries — India, Thailand and the US — the couple came with a request to have children of both sexes using the pre-natal diagnostic techniques to “balance their family”.
Seeking exemption from the PCPNDT Act, the couple had contended that they cannot be treated on a par with those who choose the sex of foetus in order to have a male child. The couple had contended that they belong to an ‘exceptional category’.
The family welfare department, however, rejected their plea, saying that the Act did not permit sex selection on the pretext of family balancing. The department had remarked that any relaxation would be detrimental of the government’s endeavour to reverse the trend of the declining female child sex ratio.
Concurring with the department’s order, the court declined to accept the couple’s plea, saying the integral purposes of the law was to prevent misuse of pre-natal diagnosis for sex determination.
While renting of womb is legal in India, there is no law to regulate surrogacy as the draft Assisted Reproductive Technology (Regulation) Bill, which aims at bringing in a national framework for the accreditation, regulation and supervision of process of surrogacy, has not been tabled in the Parliament.
This despite a 2009 Law Commission report that had described the surrogacy industry as “a Rs. 25,000-crore pot of gold.”