Supreme Court Issues Notice On IVF Specialist's Plea Challenging Provisions Of Surrogacy Regulation Act & ART Act

The petition filed by IVF specialist Arun Muthuvel  points out a number of issues ranging from contradictory provisions in both the Acts to how the privacy under Article 19 of the "intending couple" is compromised. Here's a closer look at the contents of the petition.

Contradictory Provisions Under Both Acts

The petitioner contends that though both the statutes aim to cater to same and/or similarly places subjects, they have blatant inconsistencies which create arbitrary classification and categorization, which are unconstitutional. To name a few, under the ART Act "woman" has been defined to mean any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or bank for obtaining the authorized service of the clinic or the bank.

On the other hand, the Surrogacy Act categorizes women in two categories, first, as part of intending couple being a woman between the age of 23 and 50; and secondly as an "intending woman" defined under sec. 2(1)(s) as an Indian woman who is a widow or divorcee between the age of 35 to 45.

Secondly, under the ART Act, services are available only to married couple and to any woman above twenty-one years of age. On the other hand, under the Surrogacy Act, surrogacy may be availed only by a married Indian couple wherein the husband and wife belong to a specified age group.

Conjointly read, the two pieces of legislation exclude from within its ambit the following categories of people who may be similarly situated as any infertile couple but cannot avail services under either of the two legislations:

• Same-sex couples and other members of the LGBTQ community,

• Single women who are neither widowed nor divorced,

• Single women who are widowed and/or divorced and less than the age of 35 or more than 45,

• Single men, Couples suffering from secondary infertility,

• Couples where either partner does not fall within the defined age brackets,

• Couples where both partners are outside the defined age bracket,

• Couples suffering from secondary infertility

"….it is submitted that such narrow sex-based classification is also in teeth of decision of this Hon'ble Court in Navtej Singh Johar & Ors. v. Union of India whereby recognition and legitimacy were granted to same-sex couples even though same-sex marriage is still to be recognized", the petition states.

Right To Privacy Affected

Surrogacy is a private affair and majority of patients seeking parenthood through surrogacy would want to keep their treatment private and confidential. Therefore, the pre-condition of a genetically related surrogate mother would be in violation of basic right to privacy and reproductive autonomy of infertile couple, the plea contends. Also, the Surrogacy Act requires variety of public dissemination of information about a couple's infertility in the form of certificate sought from District Medical Board under s. 4(iii)(a)(I), order sought from Magistrate's court, under s. 4(iii)(a)(II), etc.

Blanket Ban On Commercial Surrogacy Not Desirable

The plea states that the Surrogacy Act imposes a blanket ban on commercial surrogacy. However, this may neither be desirable nor effective. In fact, the ban on commercial surrogacy, seemingly enacted to protect the impoverished women, denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right of giving birth.

"Further, a sudden and complete ban on commercial surrogacy is bound to create a black market and therefore more exploitation", the plea adds.

The petition also refers to ambiguities within the Acts regarding unreasonable mandates raising the cost of surrogacy and lack of transitory provisions.

The petition thus prays for the court for the following:

a) To recognize rights of women other than married women above thirty- five years of age to avail surrogacy;

b) To strike down the definition of couple under S. 2(1)(h) of the Surrogacy Act, 2021 and of commissioning couple in S. 2(1)(e) of the ART Act, 2021 or include couples other the married man and woman in these definitions;

c) To rephrase the definitions of gestational surrogacy and surrogate mother in order to align them with each other;

d) Issue direction to the respondents prescribing a time limit for issuance of essentiality certificate by the District Medical Board and further come up with a provision for appeal/review;

e) To strike down S.27(6) mandating a donor bank to obtain Aadhaar details of each donor;

f) To declare Section 4(iii)(b)(III) to be in violation of Art 14 and 21 of the Constitution;

g) To strike down the provisions of the ART Act imposing rigorous penalties for medical practitioners and;

h) To reduce the onerous requirements for registration of ART Clinics including the exorbitant registration fees.

The Petition has been filed through Advocate Mohini Priya and Ameyavikrama Thanvi.

Case Title: Arun Muthuvel vs Union of India | W.P.(C) No. 756/2022 PIL-W