"Discriminatory Against Single Men & Married Women Having Child": Plea In Delhi HC Challenges Assisted Reproductive Technology Act & Surrogacy Act

A plea has been filed in the Delhi High Court challenging the vires of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, stating that some of the provisions 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.

A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta will be hearing the matter tomorrow.

Moved through Advocate Aditya Samaddar, the plea argues that the the impugned Acts are ultra vires Article 14 and 21 of the Constitution of India.

The plea 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 being 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.

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 Acts severely regulate these rights, so much so, that both the fundamental rights stand defeated of the petitioners.

The plea thus challenges sec. 2(e), 14(2), 21, 27(3) and 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 as well as sec. 2(h), 2(s), 2(r), 2(zd),2(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 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