Priyanka Singh
Published on: September 27, 2022 at 18:25 IST
The Supreme Court sought response from the Ministry of Health and Family Welfare, Ministry of Women and Child Development and Indian Council of Medical Research, on Monday, with regards to a petition challenging the provisions under Assisted Reproductive Technology (Regulation) Act, 2021, the Surrogacy (Regulation) Act, 2021 and related rules.
The plea, filed by IVF specialist Arun Muthuvel, highlights various problematic areas ranging from contradictory provisions in both the Acts to the compromision of privacy of a couple. [Arun Muthuvel vs. Union of India | W.P.(C) No. 756/2022 PIL-W]
Provisions Contradicting under the Two Acts –
The petition appraises the inconsistencies that create arbitrary classification which are eventually constitutionally invalid.
An instance to this is the definition of ‘woman’ under the ART Act which indicates any woman above 21 years of age who approaches an assisted reproductive technology clinic or bank for procurement of authorized service of the clinic/bank.
Contrarily, the Surrogacy Act gives two categories for a woman, first being the part of an intending couple between the range of ages 23 and 50; second as an “intending woman” u/s 2(1)(s), an Indian woman who is a widow or divorcee ranging between the ages 35 to 45.
Also, the ART Act serves only to married couples and to women above the age of 21 years of age, which contrasts with the conditions under the Surrogacy Act, which is available to only Indian married couples, specifying the ages of both husband and wife.
When read together, the Acts exclude the categories of people who may be similarly situated as an infertile couple but cannot avail services under neither of them –
- 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 suffering from secondary infertility (the inability to conceive a child or carry a pregnancy to full term after previously giving birth)
The petitioner paired his contention with the judgment in the Navtej Singh Johar & Ors. v. Union of India, accusing the legislations to be narrow and hence, not taking the mentioned judgment in cognizance.
The Right to Privacy Violation –
The procedure to carry out surrogacy is meant to be private, with patients seeking confidentiality while achieving parenthood, this privacy gets violated when it is required to have a genetically related surrogate mother.
On top of this, the Surrogacy Act calls for circulation of information publically about the couple’s infertility under the certificate that is sought from District Medical Board u/s 4(iii)(a)(l) and order sought from the Magistrate’s court u/s 4(iii)(a)(ll).
Blanket Ban on Commercial Surrogacy –
The Surrogacy Act imposes a blanket ban on commercial surrogacy, one where surrogacy can be arranged with a surrogate mother who may/not be genetically unrelated and shall be compensated for the services she provides beyond medical reimbursements.
The ban on such surrogacy is stripping of the rights of surrogates over their bodies and denies the opportunity to give birth.
The plea added, “a sudden and complete ban on commercial surrogacy is bound to create a black market and therefore more exploitation,” pointing out the ambiguities within the Acts regarding the vexatious raising of costs of surrogacy.
The Petition Prays –
- Recognition of right of women other than prescribed age criterion, people of LGBT community and single men;
- Striking down the definition of ‘couple’ u/s 2(1)(h) of the Surrogacy Act, 2021 and of a ‘commissioning couple’ in s.2(1)(e) under the ART Act, 2021, or the inclusion of couples other than married ones;
- Rephrase definition of ‘gestational surrogacy and ‘surrogate mother’;
- Directions to the respondents, prescribing time limit for the issuance of essentially certificate by the District Medical Board and further come up with a provision for an appeal or review;
- Striking down s.27(6) that mandates a donor bank to obtain Aadhaar details of the donors;
- The declaration of s.4(iii)(b)(III) being constitutionally invalid, violating Articles 19 and 21;
- Reduction of requirements for the registration of ART clinics including the immoderate registration fees.