Including Live-In & Same-Sex Couples Under Surrogacy Act Might Lead to Misuse: Centre to Supreme Court

In an additional affidavit filed on behalf of the Union of India and the Indian Council of Medical Research, the conclusions of a parliamentary committee have been cited to defend the decision to keep live-in couples and queer couples outside the purview and scope of both the Surrogacy Act, 2021 and the Assisted Reproductive Act, 2021. The affidavit reveals:

“In its 129^th report, the committee was of the view that even though relations between live-in couples and same sex couples have been decriminalised by the court, however, they have not been legalised. The court has decriminalised same-sex relations and live-in relations. However, neither any special provisions have been introduced with respect to such couples nor have they been granted any additional rights. In its 102^nd report, the committee was of the view that with respect to the Surrogacy Act, the inclusion of these sections of society would open the scope of misuse of such facilities and it would be difficult to ensure better future of the child born through surrogacy.”

This affidavit was submitted by the union government and the ICMR in response to a batch of petitions and interim applications questioning the constitutional validity of various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Rules, 2022, the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022. The matter is currently being heard by a division bench of Justices Ajay Rastogi and Bela M. Trivedi.

The definition of ‘couple’ under the Assisted Reproductive Act, 2021 and Surrogacy Act, 2021, the affidavit states, makes it evidently clear that the intending/commissioning couple should be ‘legally married biological man and woman’. According to the affidavit, live-in couples and couples on the LGBTQIA+ spectrum are not bound by the law and as such, the safety of the child born through surrogacy will be questionable. The legitimate State interest mandates that the welfare of the child trumps any notions of equality amongst prospective/intending parents/couples, the affidavit states. It further submits:

“The only kind of couples that are eligible to avail benefits of surrogacy or assisted reproduction are heterosexual marriage couples, to the exclusion of live-in couples or any other relationships and that too with strong regulations with respect to age, consent etc. There are clear exclusions of even some married heterosexual couples again from the prism of the child being paramount. from the prism of the welfare of the child being paramount.”

Centre defends exclusion of single women 

Besides this, the Centre has sought to defend the decision of excluding unmarried, single women from availing the benefits of the Surrogacy Act, even though they can employ the help of assisted reproductive technologies to have children. The parliamentary committee envisioned two situations in which a single person would genuinely need to have a child through surrogacy – one where the woman is a widow and cannot have a child herself due to social stigma; and another, where the woman is a divorcee and is unwilling to get married again. The affidavit reveals that the expert members of the National Assisted Reproductive Technology and Surrogacy Board constituted in December 2022 have concurred with the observations of the parliamentary committee. The exclusion of unmarried, single women, it has been submitted, would protect the interest of the unborn child and would ensure that the parent is biologically related to the child born through surrogacy.

The contention regarding the child being biologically related to the parent(s) to ensure their best interest has been raised once again to justify the Centre’s decision to bar donor gametes. The affidavit claims:

“If the child is not biologically related, there is a possibility that the parents (couple) would not have a strong emotional bond with the child, and the child may be rejected or uncared for by the parent who is not biologically related. The situation would be harmful especially if the parent who has donated the gametes does not survive or the couple separates…The parliamentary committee has also clarified that gametes from a party may lead to legal complications and child custody issues at a later stage.”

Interestingly, under the ART Act, oocyte or sperm donors need to submit their Aadhar details before being allowed to make the donation. The union government has explained this would ensure the effective and transparent implementation of the act. It is submitted:

“The effective implementation of the ART Act, 2021 and the Surrogacy Act, 2021 requires complete and absolute transparency. It is pertinent to note that the Act provides a limit to the number of times a donor can donate a gamete under Section 27 of the Act. This can only be ensured if sperm donation is linked to Aadhar Card.”

Concerns raised by practitioners with respect to the proportionality of the offences and penalties under the ART Act have also been addressed in the affidavit. The union government has explained that the imposition of rigorous penalties on defaulters would ensure ethical practices and safeguard the rights of the commissioning couples, women and children born through ART services. The affidavit states:

“The penal provision has been incorporated to address the plethora of legal, ethical, and social issues and to streamline the assisted reproductive technology by enforcing standardization of protocols and regulation of ART activities. The parliamentary committee observed that the provision of penalty is to prevent and prohibit the severe offence of potentially misusing the implantation genetic diagnosis for sex determination of ‘made- to-order’ or ‘tailor-made’ babies. The national board did not find any ground to differ from this viewpoint.”

MoHFW has issued clarification to all states and union territories regarding non-genetic link of surrogate mother: Centre tells SC

Notably, the affidavit also reveals that the Ministry of Health and Family Welfare (MoHFW) sent a letter was sent to the principal secretaries of all states and union territories clarifying the position regarding the non-genetic link of the surrogate mother to the child, and therefore, an intending couple or woman. In other words, the surrogate mother should not be genetically related to the child, even though the child born out of surrogacy must necessarily be related to the intending couple or woman. The letter states:

“It is reiterated that any willing woman can act as a surrogate mother on fulfilment of the [prescribed] conditions and hence it is not mandatory that the surrogate mother is genetically related to the intending couple or intending woman, as defined in the Surrogacy (Regulation) Act, 2021.”

This development came after the Supreme Court of India was informed by the petitioner that despite issuing an important clarification to an apex court bench regarding the eligibility of a surrogate mother under the existing surrogacy laws in the country, no notification or office memorandum to that effect had been passed by the central government. Advocate Mohini Priya, appearing on behalf of one of the petitioners, had submitted that in the absence of a formal directive by the centre, petitioners could not seek the benefit of the clarifications issued by it. She had said:

“The government has not issued any notification with respect to their clarification that a surrogate mother need not be genetically related to the child. The government has made its stand very clear with respect to this. But without an official memorandum, doctors and hospitals are not agreeing to go ahead in the manner suggested by the centre.”

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 limiting the number of donations made by an oocyte donor under the ART Act would amount to ‘unscientific and irrational restrictions’.

In January of this year, the bench had instructed the centre to make a representation to the National Assisted Reproductive Technology and Surrogacy Board constituted in December 2022 to consider the prayers in the petition and file a suitable response. The following month, the union government, in consultation with the national board, issued three important clarifications regarding the extant regime on surrogacy and assisted reproductive technologies.

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 an embryo in her womb’ and as such, fulfils the conditions outlined in the act. The centre 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.

Besides this, the centre 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.

Further, the centre 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.

Afterwards, the top court directed the Centre to immediately give effect to the three important clarifications issued by them. The bench also urged the national board to ‘take a call’ on those grievances that had not yet been examined by it expeditiously, “to the extent possible within the parameters of the acts, and which are acceptable to society”. However, the bench assured the petitioners that it would examine those grievances that the board decided to reject. “Wherever you have trouble, we will a call,” Justice Rastogi told them.

Case Title

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