The Supreme Court on Monday sought a response from the central government on a PIL challenging the vires of Surrogacy Act, 2021, and the Assisted Reproductive Technology Act, 2021 for imposing a “restrictive regime which gravely impinges upon the most basic reproductive right of individuals”.
“The ban on commercial surrogacy, seemingly enacted to protect the impoverished women, denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right of giving birth,” the petition said. A bench led by Justice Ajay Rastogi sought response from the ministries of health and family welfare, women and child development and the Indian Council for Medical Research on a petition by Chennai-based an IVF specialist Arun Muthuvel seeking various reliefs, including a direction to recognise rights of women other than married women above 35 years of age to avail surrogacy as a means of assisted reproductive technique to experience motherhood.
Counsel Mohini Priya, appearing for Muthuvel, said an unreasonable blanket ban on commercial surrogacy while allowing only altruistic surrogacy may lead to further exploitation of women within the family, which is akin to forced labour and unregulated markets for surrogacy. According to the petition, there has been direct infringement of reproductive rights of women which is integral to right to privacy guaranteed under Article 21 of the Constitution. There have been ambiguities within the Acts as regards age thresholds, unreasonable mandates raising the cost of surrogacy and lack of transitory provisions, it stated.
“The Acts fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques. In turn, the two statutes impose restrictive regime which gravely impinges upon the most basic reproductive right of individuals. The two statutes, in fact, fail to imagine the various social and economic complexities of infertility and assisted reproduction leave alone address the satisfactorily,” it said.
The petition further said that even though the two statutes aim to cater to same subjects, they have blatant inconsistencies which create arbitrary classification and categorisation. For instance, under the ART Act “woman” has been defined to mean any woman above the age of 21, however, the Surrogacy Act categorises women in two categories, first, under Section 4(iii)(c)(I), as part of intending couple being a woman between the age of 23 and 50; and secondly as an “intending woman” defined under Section 2(1)(s) as an Indian woman who is a widow or divorcee between the age of 35 to 45. Similar differences exist between definition of a couple and insurance coverage provided, it said, adding that these inconsistencies cause “structural hinderances.”
Priya claimed that there was discriminatory and restrictive classification of persons under the scheme of the Acts making it violative of Article 14 of the Constitution. Further, he sought a direction or order to strike down the definition of -couple under S. 2(1)(h) of the Surrogacy Act, 2021 and of -commissioning couple in Section 2(1)(e) of the ART Act, 2021 and alternative read down the said definitions to include couples other the married man and woman.