"Infringes Reproductive Rights" : IVF Specialist Moves Supreme Court Challenging Provisions Of Surrogacy Regulation Act & ART Act

A Petition challenging various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, the ART (Regulation) Rules, 2022, the Surrogacy (Regulation) Act, 2021 and the Surrogacy (regulation) Rules, 2022 has been filed in the Supreme Court on behalf Arun Muthuvel, a leading IVF Specialist from Chennai. 

The following provisions have been challenged by means of the petition:

a) Sections 2(1)(e), 14(2), 21, 22(4) and 27(3) of Assisted Reproductive Technology (Regulation) Act, 2021 

b) Rules 3, 7 and 12 of ART (Regulation) Rules, 2022

c) Sections 2(1)(h), 2(1)(s), 2(1)(r), 2(1)(zd),2(1)(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C), 8 and Section 38(1)(a) of the Surrogacy (Regulation) Act, 2021

d) Rules 3(1), 5(2), 6, 7 and 10 of the Surrogacy Rules 2022

As per the petition, both the ART Act, as well as the Surrogacy Act fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques and impose a "restrictive regime which gravely impinges upon the most basic reproductive right of individuals".

The petition states that even though the two statutes aim to cater to same subjects, they have blatant inconsistencies which create arbitrary classification and categorization. For instance, under the ART Act "woman" has been defined to mean any woman above the age of twenty-one years, however, the Surrogacy Act categorizes women in two categories, first, under Section 4(iii)(c)(I), as part of intending couple being a woman between the age of 23 and 50; and secondly as an "intending woman" defined under Section 2(1)(s) as an Indian woman who is a widow or divorcee between the age of 35 to 45. Similar differences exist between definition of a couple and insurance coverage provided. The petition submits that these inconsistencies cause 'structural hinderances'.

The petition further submits that–

"The impugned 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."

It states that the Acts excludes members of the LGBTQ community, single women who are neither widowed or divorced, single men, couples suffering from secondary infertility etc. from availing services and hence violates Article 14 of the Indian Constitution. 

Another issue highlighted by the petition is that the Acts violate the fundamental right of privacy under Article 21 of the Indian Constitution as they consist of a pre-condition of a genetically related surrogate mother for the purpose of surrogacy, Further, the Surrogacy Act requires variety of public dissemination of information about a couple's infertility in the form of certificate sought from District Medical Board under s. 4(iii)(a)(I), order sought from Magistrate's court, under s. 4(iii)(a)(II), etc. As per the petition, the ART Act also under sec. 22 mandates provision of insurance coverage for oocyte donor, which would lead to revealing of identity of the donor.

While referring to the ban on commercial surrogacy by the act as "unnecessary and undesirable", the petition states that–

"The ban on commercial surrogacy, seemingly enacted to protect the impoverished women, denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right of giving birth."

The petition underscores that as per Section 27(2) of the ART Act, an oocyte donor can donate only once in her lifetime. This, as per the petition, implies that the number of egg donors will be totally restricted and the costs of obtaining the oocyte would be exorbitant. Thus, the petition submits that the restrictions provided in the ART Act as regards donors pose many questions on its implementation and viability. 

It also highlights the 'onerous conditions' placed not just on surrogate mothers, but also medical practitioners by stating that the fee for registration of ART clinic level is exorbitant and that the provisions of Rule 4 Schedule 1 direct for employing minimum one Embryologist, Anesthetist and counselor. As per the petition, these specialists are not available in such numbers that they can be employed on salary basis by all the ART irrespective of their size. Further, almost all the small towns where such centers are operating are likely to be closed due to non-availability of such specialists.

The petition also refers to structural and implementational difficulties and states that many assisted reproductive procedures initiated prior to the enactments of the Acts are now illegal as per the Acts and this has put doctors in a dilemma about whether or not to continue with the on-going treatments.

The petition thus prays for the court for the following:

a) To recognize rights of women other than married women above thirty- five years of age to avail surrogacy;

b) To strike down the definition of couple under S. 2(1)(h) of the Surrogacy Act, 2021 and of commissioning couple in S. 2(1)(e) of the ART Act, 2021 or include couples other the married man and woman in these definitions;

c) To rephrase the definitions of gestational surrogacy and surrogate mother in order to align them with each other;

d) Issue direction to the respondents prescribing a time limit for issuance of essentiality certificate by the District Medical Board and further come up with a provision for appeal/review;

e) To strike down S.27(6) mandating a donor bank to obtain Aadhaar details of each donor;

f) To declare Section 4(iii)(b)(III) to be in violation of Art 14 and 21 of the Constitution;

g) To strike down the provisions of the ART Act imposing rigorous penalties for medical practitioners and;

h) To reduce the onerous requirements for registration of ART Clinics including the exorbitant registration fees.

The Petition has been filed through Advocate Mohini Priya and Ameyavikrama Thanvi.

CASE TITLE: ARUN MUTHUVEL vs UNION OF INDIA | Diary No. 26590-2022