Challenge To Surrogacy Law : Supreme Court To Consider Prohibition On Commercial Surrogacy, Etc., Hearing In July 2024

The Supreme Court on May 3 broadly indicated the issues it would be considering in a batch of pleas challenging provisions of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022.

After taking into account the submissions made at the Bar, the bench comprising Justices BV Nagarathna and AG Masih called for written submissions on the issues (proposed by the Union), which are as follows:

1. Whether the prohibition of commercial surrogacy under Sections 4(ii)(b) & 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?

2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as provided in Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?

3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as provided under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, is constitutional?

4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?

5. Whether individuals who initiated the process of availing surrogacy prior to the enactment of the Surrogacy (Regulation) Act, 2021 have any right to avail surrogacy in a manner beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?

One additional issue highlighted by the petitioners during the hearing related to exclusion of single men from the purview of Surrogacy Regulation Act.

The lead petition in the matter has been filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocates Mohini Priya and Ameyavikrama Thanvi. Besides highlighting various contradictions in the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, the petitioner points out that the twin legislations 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 states.

After the top court agreed to hear the challenge against the two Acts in September last year, several other petitions and applications were filed raising similar 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".

Yesterday, the Bench expressed reservations about hearing challenges to both the Acts simultaneously, as the linkage between the provisions of the two Acts could not be ascertained. Seemingly, it was inclined to hear the issues wrt the Surrogacy Regulation Act first, followed by those relating to the ART Act.

The parties have been asked to file written submissions on the foregoing issues and the matter listed for consideration on July 30. It has been clarified that the petitioners need not restrict their submissions to the issues proposed by the Union. Any 'related' issue can also be raised.

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

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