Pink Legal Trust Moves Delhi High Court Seeking Impleadment In Plea Challenging Vires Of Assisted Reproductive Technology Act & Surrogacy Act

Pink Legal Trust, a registered public charitable trust established for the benefit of citizens across India particularly for women and children, has moved the Delhi High Court seeking impleadment in a plea challenging the vires of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021.

Moved through Advocate Aarzoo Aneja, the impleadment application seeks to challenge various provisions of the two statutes for not being in consonance with Article 14 and Article 21 of the Constitution of India.

The plea states that restricting surrogacy to married couples and disqualifying others on the basis of gender, marital status, sexual orientation, age does not qualify the test of equality and has no connection with the objective of the legislation.

"It is settled law that the right of reproduction autonomy is part of personal liberty as guaranteed under Article 21 of the Constitution. The right to make decisions about reproduction is essentially a very personal decision either on the part of man or woman. Necessarily, such a right includes the right not to reproduce," the plea adds.

It further avers that the impugned provisions curtail or interfere with the right to take a decision in the matter of procreation, thereby adding that the state has interfered with the right to exercise their choice to have children naturally or through surrogacy disproportionate to the purpose of law.

"Thus the said impugned provisions are a draconian act of the Legislature whereby the right to privacy of a person is deprived and such deprivation offends Article 14 and 21 of the Constitution of India," the plea argues.

The plea submits that the Surrogacy (Regulation) Act 2021 prohibits the following people, who are similarly placed from exercising their right to reproduction choice without any basis: Unmarried women, Heterosexual and Homosexual Couples who are in live 1n relationships for a long time and are living under the same roof, Married women who has a surviving child, Couple who has a surviving child, Divorced men, Widowed men, Unmarried men, Women (married/unmarried) who have no medical indication necessitating gestational surrogacy and Men (married/unmarried) who have no medical indication necessitating gestational surrogacy.

In this backdrop, it has been argued that to deprive the benefit of surrogacy to other sections of the society which is provided to a 'couple' as defined under the Act arbitrarily and disproportionately is in violation of their right to make choice regarding reproduction or procreation, right to privacy and right to live with dignity as guaranteed under Article 21.

It has also been stated that a complete ban on commercial surrogacy is arbitrary and has no correlation with the objection to be achieved i.e. regulation of surrogacy and preventing exploitation of surrogates mothers.

The plea has thus proposed that commercial surrogacy should be allowed to the extent of giving remuneration or monetary incentive in cash or kind to the surrogate mother.

It also adds that by allowing surrogacy only to a couple that has medical indication necessitating gestational surrogacy is in violation of Article 21 of the Constitution.

Furthermore, the plea also argues that there is no date available online indicating whether Delhi has constituted a State Assisted Reproductive Technology Board or whether there has been compliance of Section 9 and Section 12 of the Act. It states that the Government should make appropriate information available in this regard.

The High Court had on May 27 issued notice on the main petition which 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.

The plea states that some of the provisions of the Acts 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.

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