Plea in Delhi HC challenging provisions of Surrogacy Act, Assisted Reproductive Technology Act
May 26, 2022
New Delhi [India], May 26 : A petition has been moved in the Delhi High court challenging provisions of the Surrogacy Act and the Assisted Reproductive Technology Act on the ground that the laws are discriminatory against a single man desirous of being a father through surrogacy and a married woman who already has a child and is desirous of expanding her family through the means of surrogacy.
Plea seeking the declaration certain provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 (Act No. 42 of 2021) and the Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021) be declared ultra vires the Constitution of India as the said provisions are allegedly discriminatory.
The petition has been moved by two petitioners, first is Petitioner, Karan Balraj Mehta, a single unmarried man, an advocate by profession, claiming he is desirous of being a father by means of surrogacy.
The second petitioner Pankhuri Chandra is a married woman who works as a Teacher (Psychology) claiming that she is desirous of having a child but only through surrogacy.
The plea stated that Section 2 (zd) of the Surrogacy (Regulation) Act, 2021 defines "surrogacy" as "a practise whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth".
The plea also stated that the Section 2 (zd) of the Surrogacy (Regulation) Act, 2021 defines "surrogacy" as "a practise whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth".
The petition further stated that the Section 4(ii)(b) of the Surrogacy (Regulation) Act,
2021 prohibits all forms of commercial surrogacy and allows only altruistic surrogacy. Commercial surrogacy is the only option available to the Petitioners as they are unable to obtain consent from a woman who fulfils the rigours of the eligibility of a surrogate mother, said the plea.
The ban on commercial surrogacy, seemingly enacted to protect impoverished women, de-nudes such women from their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth, the plea read.
The limitations imposed on who can be a surrogate mother in terms of Section 2 (zg) read with Section 4 (iii)(b)(I) of the Surrogacy (Regulation) Act, 2021, limit the options available to an 'intending couple' or 'intending woman' and diminish their chances of finding a consenting surrogate mother. The best eligibility criteria to maximise the chances of finding the best surrogate mother, in the interests of both the intending couple'/ 'intending woman' or the surrogate baby, would be any healthy woman above the age of majority. The needless conditions of being genetically related, of a particular age, married and already having at least one child only constrict the universe of available candidates who may otherwise become healthy surrogate mothers, the plea read.
