Including Live-In & Same-Sex Couples Under Surrogacy Act Might Lead to Misuse: Centre to Supreme Court

Inclusion of live-in couples and queer couples within the ambit of the Surrogacy Act would open the scope of ‘misuse’ of such facilities and it would be difficult to ensure the best future for the child born through surrogacy, the Centre has told the Supreme Court. In an additional affidavit filed on behalf of the Union of India and the Indian Council of Medical Research, the conclusions of a parliamentary committee have been cited to defend the decision to keep live-in couples and queer couples outside the purview and scope of both the Surrogacy Act, 2021 and the Assisted Reproductive Act, 2021. The affidavit reveals: “In its 129th report, the committee was of the view that even though relations between live-in couples and same sex couples have been decriminalised by the court, however, they have not been legalised. The court has decriminalised same-sex relations and live-in relations. However, neither any special provisions have been introduced with respect to such couples nor have they been granted any additional rights. In its 102nd report, the committee was of the view that with respect to the Surrogacy Act, the inclusion of these sections of society would open the scope of misuse of such facilities and it would be difficult to ensure better future of the child born through surrogacy.” This affidavit was submitted by the union government and the ICMR in response to a batch of petitions and interim applications questioning the constitutional validity of various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Rules, 2022, the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022. The matter is currently being heard by a division bench of Justices Ajay Rastogi and Bela M. Trivedi. The definition of ‘couple’ under the Assisted Reproductive Act, 2021 and Surrogacy Act, 2021, the affidavit states, makes it evidently clear that the intending/commissioning couple should be ‘legally married biological man and woman’. According to the affidavit, live-in couples and couples on the LGBTQIA+ spectrum are not bound by the law and as such, the safety of the child born through surrogacy will be questionable. The legitimate State interest mandates that the welfare of the child trumps any notions of equality amongst prospective/intending parents/couples, the affidavit states. It further submits: “The only kind of couples that are eligible to avail benefits of surrogacy or assisted reproduction are heterosexual marriage couples, to the exclusion of live-in couples or any other relationships and that too with strong regulations with respect to age, consent etc. There are clear exclusions of even some married heterosexual couples again from the prism of the child being paramount. from the prism of the welfare of the child being paramount.”Centre defends exclusion of single women Besides this, the Centre has sought to defend the decision of excluding unmarried, single women from availing the benefits of the Surrogacy Act, even though they can employ the help of assisted reproductive technologies to have children. The parliamentary committee envisioned two situations in which a single person would genuinely need to have a child through surrogacy – one where the woman is a widow and cannot have a child herself due to social stigma; and another, where the woman is a divorcee and is unwilling to get married again. The affidavit reveals that the expert members of the National Assisted Reproductive Technology and Surrogacy Board constituted in December 2022 have concurred with the observations of the parliamentary committee. The exclusion of unmarried, single women, it has been submitted, would protect the interest of the unborn child and would ensure that the parent is biologically related to the child born through surrogacy. The contention regarding the child being biologically related to the parent(s) to ensure their best interest has been raised once again to justify the Centre’s decision to bar donor gametes. The affidavit claims: “If the child is not biologically related, there is a possibility that the parents (couple) would not have a strong emotional bond with the child, and the child may be rejected or uncared for by the parent who is not biologically related. The situation would be harmful especially if the parent who has donated the gametes does not survive or the couple separates…The parliamentary committee has also clarified that gametes from a party may lead to legal complications and child custody issues at a later stage.” Interestingly, under the ART Act, oocyte or sperm donors need to submit their Aadhar details before being allowed to make the donation. The union government has explained this would ensure the effective and transparent implementation of the act. It is submitted: “The effective implementation of the ART Act, 2021 ...

Including Live-In & Same-Sex Couples Under Surrogacy Act Might Lead to Misuse: Centre to Supreme Court

Awstika Das

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