An amendment that came via a notification dated March 14, 2023, is challenged by a couple in Bombay HC. This amendment barres infertile couples or single women from availing surrogacy and defeats the purpose of the surrogacy rules which enables a couple or single women to bear a child.
WHAT IS SURROGACY?
Surrogacy is a process in which a woman carries a child (surrogate mother) of a couple or a single woman who wishes to bear a child of their own.
It is often a legal agreement where a woman agrees to deliver at the behest of another couple or single parent. This can be availed by those for whom pregnancy is medically impossible, or there is a high risk, or for those who do not wish to carry a pregnancy.
Surrogacy can be commercial or altruistic, which means it may include monetary advantages or may not.
There are two types of surrogacies-
- Traditional: In this the surrogate’s egg is fertilized by the intended father’s or donor’s sperm.
- Gestational: An embryo is created by IVF technology and is implanted in a surrogate. This type of surrogacy is prevalent these days.
The act allows only altruistic surrogacy, where the surrogate mother will not be paid or renumerated except the medical expenses and insurance of the surrogate will be covered. The surrogate mother should be genetically related to the intended parent. Commercial surrogacy is banned by the act and punishable with a jail term of 10 years and a fine of up to 10 lakhs Rs.
It allows a woman who is a widow or a divorcee of the age 35-45 years or a couple who is legally married woman and man if they have a medical necessitating this option.
PLEA BEFORE BOMBAY HC
The writ petition was filed through Advocate Tejesh Dande, challenging a central government notification dated 14 March 2023 which amended clause 1(d) of form 2 under rule 7 of the surrogacy (regulation) rules, 2022. The amendment says that the couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed.
The petition speaks that the couple faced fertility complications due to the small size of the female’s uterus. That is why they intended to have a donor gamete, but they can never apply for surrogacy as barred by the amendment. The amendments say that the gametes of only the intending couple who wishes to apply for surrogacy can be used.
The petition also states that the amendment does not allow a couple to use donor gametes. According to the amendment, the couple who have a child with genetic defects but they can have another one through surrogacy is forcing them to have another child with congenital defects.
It is a clear violation of the fundamental rights of people who are unable to produce sperm or eggs. The amendment violates Art 14 of the COI which says that the state shall not deny any person equality before the law, by denying people unable to produce eggs or sperm the process of surrogacy and allowing those who can produce. It also violates a person’s right to life and personal liberty guaranteed by Art 21 of the Indian constitution.
The court should consider that it is very natural for people to be infertile and have the inability to produce eggs or sperm. A government notification cannot restrict a person from bearing a child. The amendment goes against the sole purpose of the surrogacy act to allow those who cannot have a child to have one.
The same issue is also being discussed and the amendment is challenged in the Delhi HC. Further, a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad issued a notice and sought a response from the Union of India and the Delhi government.
The laws related to adoption and surrogacy came into existence to allow those who cannot have a child to have one. It is an integral part of one’s life, but the amendments which contradict the same without proper logic and violates the fundamental rights of the citizens should be challenged. The petitioners sought an appropriate writ to quash the impugned notification issued by the central government and sought a stay on the effect of the notification.
Author’s Name: Khushi Vashisth (Dr. B. R. Ambedkar National Law University, Sonipat)