'Surrogate Mother Need Not Be Genetically Related To Child' : Centre Clarifies Surrogacy Law Provision Before Supreme Court

The bench noted in the order, “Pursuant to the court’s order dated January 9, the matter was taken note of by the board constituted by the government in 2022. Certain suggestions that the board has made are made available to us. We direct that what is feasible and acceptable by the board be implemented forthwith. Since the board is yet to take a call on [the remaining] grievances in the petition as well as interim applications, we request the board to examine them, and to [undertake those], to the extent possible within the parameters of the acts, and which are acceptable to society, at the earliest.”

To Additional Solicitor-General Aishwarya Bhati, appearing on behalf of the government, Justice Rastogi said, “We are not recording this in the order, but ask the board to speed up. We are running against time.”

What are the clarifications issued by the centre?

• Children must be genetically related to both intending parents or intending woman (widow or divorcee)

The first question arose with respect to the term ‘genetically related’ in Section 2(1)(zg) of the Surrogacy Act. This clause defines a ‘surrogate mother’ as ‘a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb’ and as such, fulfils the conditions outlined in the act. The centre has clarified that the term ‘genetically related’ qualified the child and not the surrogate mother. In other words, while the surrogate mother may not be genetically related to the child, the child to be born through surrogacy must be genetically related to the intending couple or intending woman. Therefore, the role of a third-party sperm donor would be limited to when an intending woman who is widowed or divorced (since single women have been excluded from the purview of the act), elects to have a child through surrogacy.

Taking severe objection to this, Advocate Mohini Priya explained that mandating surrogate children to be genetically related to both parents, in the case of an intending couple, and the intending woman, was inconsistent with the provisions of the ART Act, which did not prohibit the use of third-party donor eggs. “Why is donation allowed for in vitro fertilisation then?” the counsel asked the bench.

However, the judges made it clear that they were ‘reluctant’ to intervene at this stage. Justice Rastogi explained, “We are reluctant for the reason that we are not able to understand the implications, nor how to proceed.” “Last time, the Additional Solicitor-General had said that this was not adversarial litigation and was for the benefit of society. Therefore, let the expert body examine these issues first,” said Justice Trivedi, urging the petitioners to wait for the national board to ‘take a call’ on all of the petitioners’ grievances. However, the bench assured that they would examine those grievances that the board decided to reject. “Wherever you have trouble, we will take a call as to whether the board decision needs to be reconsidered,” Justice Rastogi said.

In a conversation with LiveLaw, Priya elaborated, “No one comes for surrogacy directly. Usually, a person tries in vitro fertilisation and intrauterine insemination several times. Only when all these attempts fail do couples come for surrogacy, as a last resort. When they were allowed to use donor eggs throughout, it is irrational and baseless to stop them from using donor eggs when they decide to take the last resort.”

"The Union of India, after deliberations among the members of the National Board, has clarified that the Act mandates that the surrogate mother may not be genetically related to the child to be born through surrogacy. Section 4 (iii)(b) (III) of the Surrogacy Act prescribes that no woman shall act as a surrogate mother by providing her own gametes. However, the child to be born through surrogacy must be genetically related to the intending couple or intending woman (Widow or Divorcee).It means that the child to be born through surrogacy to the intending couple should be formed of gametes of the intending couple themselves i.e sperms from the father and oocytes from the mother. Similarly the child to be born through surrogacy to the intending woman (widow / divorcee) should be formed of the oocytes from the intending woman (widow / divorcee) herself and sperms from the donor"- Centre's clarification

• ART and surrogacy boards are required to be constituted in all states and UTs; Bihar, UP, and Gujarat yet to comply

The centre has also clarified that Section 6 of the ART Act and Section 26 of the Surrogacy Act stipulated the constitution of a state-level ART and surrogacy board in all states and union territories. Bhati also informed the court that at present, such expert bodies had been constituted in all states and union territories except Bihar, Uttar Pradesh, and Gujarat.

• Appropriate authorities are required to be constituted in all states and UTs; Bihar and UP yet to comply

Further, the centre has clarified that Section 12 of the ART Act and Section 35 of the Surrogacy Act provided for the constitution of appropriate authorities in all states and union territories for the purposes of the two legislations. Currently, Bhati revealed, such authorities had been constituted by all states and union territories except Bihar and Uttar Pradesh.

Background

The lead petition, filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocates Mohini Priya and Ameyavikrama Thanvi, besides highlighting various contradictions in the two acts under challenge, also pointed out that the twin legislation 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 stated. After the top court agreed to hear the challenge against the two acts in September, several other petitions and applications were filed raising similar and related 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

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