Centre opposes plea challenging provisions of surrogacy law

November 08, 2022 12:55 am | Updated 12:55 am IST - NEW DELHI:

The Centre told the High Court that diluting the assisted reproductive technology (ART) and the surrogacy law would defeat the whole purpose of the law.

The Centre told the High Court that diluting the assisted reproductive technology (ART) and the surrogacy law would defeat the whole purpose of the law. | Photo Credit: FILE PHOTO

The Centre has opposed before the Delhi High Court a petition challenging certain provisions of the surrogacy laws, including the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021.

In an affidavit, the Centre stated that the surrogacy laws were enacted following due procedure, with an intention to restrict the commercialisation of embryos and newborns.

The Centre said the provisions challenged in the petition deal with the regulation of the procedure of assisted reproductive technology (ART) and surrogacy, which, if diluted, would defeat the whole purpose of the law.

‘Can’t dilute provisions’

“The provisions challenged by the petitioners in the writ petition are to regulate the procedure of the ART and surrogacy. If these clauses are diluted, the whole purpose of both the Acts shall be defeated,” the affidavit filed by the Ministry of Health and Family Welfare stated.

The Centre’s affidavit came on a petition by two individuals — Karan Balraj Mehta, an unmarried man, and Pankhuri Chandra, a married woman and a mother of one — challenging several provisions of the surrogacy law, including the exclusion of a single man and a married woman having a child from the benefit of surrogacy as a reproductive choice.

They have also challenged the ban on commercial surrogacy.

‘Right under Article 21’

In their plea, the petitioners have stated that commercial surrogacy is the only option available to them.

The petitioners have argued that the “ban on commercial surrogacy robs them of the option”.

“The personal decision of a single person about the birth of a baby through surrogacy, that is, the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution,” the petition in the High Court states.

“Thus, the right to privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away,” the petition also said.

What rules say

Under the Surrogacy (Regulation) Act, 2021, a married couple can opt for surrogacy only on medical grounds.

The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age of 23 years to 50 years and the man between 26 years to 55 years.

The couple should not have a child of their own. Though the law allows single women to resort to surrogacy, she has to be a widow or a divorcee between the age of 35 and 45 years. The law does not allo single men to go for surrogacy.

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