'Enacted After Following Due Procedure': Centre Opposes Plea Challenging Vires Of Surrogacy Act, ART Act In Delhi High Court

Centre has opposed a plea challenging the vires of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, arguing that both the Acts have been enacted following due procedure established by law.

Seeking dismissal of the plea, Centre through Ministry of Health and Family Welfare has submitted that both the Acts have been enacted to ensure that the procedures followed in assisted reproductive technology and surrogacy can be regulated in an appropriate manner, with an intention to restrict the sale or purchase or commercialization of the embryos and new born child etc.

"The provisions challenged by the petitioners in the writ petition are to regulate the procedure of the ART and Surrogacy. If these clauses are diluted, the whole purpose of both the Acts shall be defeated," the government has contended.

Arguing that there is no violation of the fundamental rights of the petitioners, Centre has said the plea is devoid of merits. No cause of action arises in favour of the petitioners to challenge the provisions of both the enactments, the government has told the court.

The petition pending before the court has been filed by two individuals, a single unmarried man and a married woman. Karan Bajaj Mehta, the first petitioner and an advocate by profession, states that he is desirous of becoming a father by means of surrogacy.

Whereas the second petitioner, a psychology teacher states that her marriage had subsisted since the year 2014 and she became a mother last year, however, she is desirous of having another child but only through surrogacy.

The plea states that some of the provisions of the enactments are discriminatory against a single man desirous of being a father through surrogacy and a married woman who already has a child and is desirous of expanding her family through the means of surrogacy.

Further, stating that the choice of reproduction has been held to be a part of the right to life under Article 21 by the Supreme Court, the plea avers that the said choices also fall within the right to privacy and that the impugned enactments severely regulate these rights, so much so, that both the fundamental rights of the petitioners stand defeated.

The plea thus challenges sections 2(e), 14(2), 21, 27(3) and 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 as well as sections 2(h), 2(s), 2(r), 2(zd),2(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C), 8 and sections 38(1)(a) of the Surrogacy (Regulation) Act, 2021 as being ultra vires Articles 14 and 21 of the Constitution of India.

"Because the ban on commercial surrogacy, seemingly enacted to protect impoverished women, de-nudes such women from their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth," the plea states.

The plea further argues that the personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21.

"Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away. In the simplest of terms, the right to commission surrogacy, to found a family, to procreate is a personal decision which cannot and should not have government intrusion in a democratic society," it adds.

Case Title: KARAN BALRAJ MEHTA & ANR. v. UNION OF INDIA