The Supreme Court on Monday sought the response of the Centre on a petition challenging a blanket ban on commercial surrogacy in India and the inherent inconsistencies in the two laws governing the field which leads to exclusion of same sex partners and single women and men from adopting children through surrogacy.
A bench of justices Ajay Rastogi and CT Ravikumar agreed to consider the issue in a public interest litigation (PIL) filed by Chennai-based IVF specialist Arun Muthuvel.
The petition had named the Central Ministries of Health & Family Welfare and Women & Child Development besides the Indian Council of Medical Research (ICMR) to which notices were issued seeking their response.
Also Read: ART, surrogacy bills: The lapses and the limitations
The petition challenged the validity of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 and the accompanying Rules with the two legislations.
The Court noted that the same issue is pending consideration before the Delhi high court and wanted the petitioner to approach the high court as well. This would facilitate a view from the high court before the matter is to be considered in the Supreme Court.
Advocate Mohini Priya who argued the petition said, “This petition infringes the reproductive rights of women which is a serious issue.”
{{/usCountry}}Advocate Mohini Priya who argued the petition said, “This petition infringes the reproductive rights of women which is a serious issue.”
{{/usCountry}}She further stated that being a Central legislation, it affects people across the country and the Supreme Court was best suited to decide the objections to the law raised in this petition, which is far more comprehensive than the grounds of challenge in the high court.
The petition highlighted the inconsistencies between the ART Act and the Surrogacy Act. It said that the definition of “woman” under the ART Act is “any woman above the age of 21 years” while the Surrogacy Act categorizes women under two heads – as part of intending couple being a woman between the age of 23 and 50 and as an “intending woman” who is Indian, is a widow or divorcee between the age of 35 to 45 years.
The two laws, apart from having several inconsistencies and hurdles in implementation, are arbitrary and discriminatory, the petition said, adding that the same kept out same-sex couples and other members of the LGBTQ community, single women who are neither widowed nor divorced, single women who are widowed and/or divorced and less than the age of 35 or more than 45, single men, couples suffering from secondary infertility, and couples where either partner does not fall within the defined age brackets.
“The Acts through their discriminatory, exclusionary, and arbitrary nature deny agency and autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of the ideal family that restricts reproductive rights,” said the petition alleging violation of Articles 14 (right to equality), 15(1) (right against discrimination) and 21 (right to life) of the Constitution.
The Act further criminalised anyone who chooses surrogacy apart from the categories specified under law. The petition noted the dichotomy of the two laws in comparison to the Hindu Adoption and Maintenance Act, 1956 which recognises parenthood rights of adult individuals (single Hindu male or female) of sound mind to adopt a child
By restricting surrogacy agreements to Indians, the petition claimed that the surrogacy industry in India, estimated to be growing by USD 445 million per year will be hit.