Despite Clarifying In Court That Surrogate Mother Need Not Be Genetically Related To Child, Centre Refuses To Issue Notification, Petitioners Claim

“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.”

A division bench of Justices Ajay Rastogi and Bela M. Trivedi was hearing 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.

Justice Rastogi said, “Once a recommendation has been made by the national board and accepted, the government has to issue a notification or a government order with respect to those recommendations.” This would compel every state board and state agencies to comply with the policy of the government, he added.

“Your Lordship is right. There were only two positive recommendations, which were followed by notifications,” said Additional Solicitor-General for India Aishwarya Bhati, vigorously disputing the petitioners’ claim. In one of the notifications, it was made clear, she said, that a child gotten through surrogacy needed to only be related to both the intending parents, and not the surrogate mother.

However, Priya remonstrated, saying, “This notification deals with a completely different issue. It bans the use of third-party donor eggs by intending couples.” She added that this requirement, which is the subject-matter of one of the challenges, was manifestly arbitrary since donation of eggs was allowed for in vitro fertilisation.

“Your Lordship, the form under the rule has been amended by way of a gazette notification,” the law officer told the bench, as she read out the relevant portion from the amended form. The additional solicitor-general added, “To my mind, this notification is sufficient on that issue.”

Justice Trivedi said, “This is a matter of interpretation of provisions.”

“Yes,” Bhati said, “For any interpretation, I will have to take this court through the ART Act and then the Surrogacy Act. There is an entire architecture.”

Justice Rastogi agreed that an extensive examination of the laws under question was required. He firmly said, “Let us first understand the act. Unless we understand it and get a full picture of the system, it would be difficult to take a call. After looking at the act, we will take note of the kind of difficulties individuals and couples are facing.” Besides directing the matter to be listed on Tuesday, May 9, the bench also directed :

“Additional Solicitor-General Aishwarya Bhati may submit a response to the interim applications on a common sheet available to all concerned persons as well as this court so that it could pass orders in the separate applications.”

Recent verdict by Karnataka High Court on 'genetically related' condition for surrogacy

Recently, the Karnataka High Court had also expressed concerns about the condition that the surrogate mother has to be genetically related to the intending couples.

The High Court had observed : “Altruistic surrogacy should mean surrogacy by an outsider. The provision runs counter to the philosophy or principle behind the enactment. The words “genetically related” appearing in Section 2(1)(zg) can only mean that the child to be born through surrogacy should be genetically related to the intending couple, failing which, the words genetically related would not have any meaning if it were to be said that the surrogate mother should be genetically related to the intending couple. That defeats both altruism and logic.”

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 whether 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