Surrogate Mothers Likely To Be Paid Anyway, Better To Have A System To Regulate : Supreme Court In Challenge To Ban On Commercial Surrogacy

While hearing the pleas challenging certain surrogacy laws, the Supreme Court today emphasized the need to safeguard the interests of surrogate mothers, even though commercial surrogacy is prohibited in India.

A bench comprising Justices BV Nagarathna and N Kotiswar Singh was hearing a batch of petitions pertaining to the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, when it observed that there is a need for a "system", so that no woman is exploited.

"There can be a database, so that the same lady is not exploited. A system must be there. Nobody is saying it's a bad idea, but at the same time, it can be badly used", orally said Justice Nagarathna.

On the aspect of compensation, the judge added that the Court will consider the aspect of a designated authority disbursing funds to surrogate mothers, instead of the intending couple paying them directly: "You don't have to pay directly to the lady, the Department pays. You will have to deposit".

Additional Solicitor General Aishwarya Bhati, on behalf of the Union, informed the Court that at present, the laws bar commercial surrogacy and only altruistic surrogacy is allowed. However, she sought time to come up with instructions, adding, "If there are any suggestions, we are willing to take. This is an Act which has specifically come and banning of commercial surrogacy was one of the prime objectives we wanted to have. Otherwise, the prism with which the experts have looked at it is the welfare of the child. It's not the rights of intending couples or individuals. It is the rights of the child ultimately who is brought into the world".

Senior Advocate Nakul Dewan, appearing for the petitioners, argued that while keeping the spirit of "altruism" intact, some sort of compensation needs to be provided to surrogate mothers, as the Act and Rules only cover medical expenses and insurance. In response to a court query, he informed that a woman can only be a surrogate mother once.

The senior counsel further stated that putting a mechanism in place would also assist intending couples who are unable to find a surrogate. "Instead of having things which go underground, if a mechanism is set out, then certainly I think we can regulate it better. Perhaps in cases where [people] are unable to find a surrogate, they may be able to find a surrogate...", he said.

Advocate Mohini Priya supplemented Dewan's submissions by suggesting that the government can work out an upper and lower limit for compensation of surrogate mothers, depending on whether they are carrying twins or single child, etc. However, the bench was of the view that the concerned government department can look into that.

Acknowledging Dewan's submission, Justice Nagarathna said that there can be something like a "surrogate bank". "The plan will not really work in the sense they are still going to be paid. Atleast we can regulate it", the judge added.

At one point, it was also noted that the effect of the existing Act(s) on intending couples who have already started the process will have to be considered.

The Court will hear the matter on November 5 and the parties have been asked to file their submissions in the meanwhile.

Background

The lead petition in the matter has been filed by an infertility specialist from Chennai, Dr. Arun Muthuvel. Besides highlighting various contradictions in the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, the petitioner points out that the twin legislations inaugurated a legal regime that was discriminatory and violative of the constitutional rights of privacy and reproductive autonomy.

“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,” the petition states.

After the top court agreed to hear the challenge against the two Acts in September last year, several other petitions and applications were filed raising similar questions, such as whether it was constitutional to exclude unmarried women from the ambit of the Surrogacy Act, or whether limiting the number of donations made by an oocyte donor under the ART Act would amount to "unscientific and irrational restrictions".

Case Title: Arun Muthuvel v. Union of India | W.P. (Civil) No. 756 of 2022 (and connected matters)