Supreme Court Redirects Applications Seeking Permission For Surrogacy To High Courts

In a significant development, the Supreme Court this week directed new applicants seeking permission to undergo surrogacy to approach the jurisdictional high courts. The Court clarified that the pendency of the petitions challenging the provisions of the surrogacy law in the Supreme Court will not bar the High Courts from entertaining applications filed by individuals seeking permission to undergo surrogacy.A bench of Justices BV Nagarathna and Augustine George Masih passed this direction, noting that a barrage of applications has been pouring in from all across the country for permission to opt for surrogacy despite statutory restraints. The applications were filed after the Supreme Court in October 2023 passed an interim order granting permission for a woman diagnosed with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome to pursue surrogacy utilising a donor egg, staying the implementation of a recent amendment to the Surrogacy Rules, which had barred the use of donor eggs for gestational surrogacy by intending couples.Accordingly, the court redirected the latest batch of applications to their respective jurisdictional high courts, hoping that 'similarly-placed' litigants would follow suit.Justice Nagarathna underscored the rationale behind this directive, questioning the necessity for all applicants to approach the Supreme Court directly when jurisdictional high courts could effectively adjudicate such matters. She also acknowledged that such a move would subserve access to justice and streamline the process.Additional Solicitor General Aishwarya Bhati, when asked for her opinion, concurred with this stance and admitted that while the union government's experts continue to deliberate on the issue raised in the batch of cases, allowing applicants to seek relief from high courts would enhance access to justice.The judge also acknowledged that an umbrella order, not specific to any one or group of litigants, prohibiting future applicants from approaching it for such permission, could not be passed. "We'll have to send the women who have come here now to the high court so that other applicants may follow suit," she said. Accordingly, disposing of the latest applications, the bench pronounced -"This court by order dated October 10, 2023 and by subsequent orders have considered the case of respective applicants and have granted interim relief to them. However, we find that following the said interim order, several applications are being filed in the pending writ petitions. We find that such a tendency would not be in the interest of applicants inasmuch as such applicants are driven to file interim applications before this court. Rather, it would subserve the access to justice if the persons similar to other applicants in whose cases interim orders have been passed by this court, are enabled to approach the jurisdictional high court for seeking similar reliefs.In the circumstances, we dispose of these applications giving liberty to the applicants to approach the jurisdictional high court seeking the reliefs that they have sought here or any other relief with regard to the issues arising in these applications. It is needless to observe that if these applicants approach the jurisdictional high court, then, their writ petition would be considered having regard to the interim order passed by this court and in accordance with law. It is further observed that the pendency of the writ petitions before this court would not come in the way of the jurisdictional high court considering the writ petitions filed by these applicants or any other similarly-placed person in accordance with law."BackgroundThis latest development comes against the backdrop of a series of legal challenges surrounding surrogacy laws in India. The surrogacy landscape has witnessed significant regulatory changes aimed at safeguarding the interests of all stakeholders involved, including intending couples, surrogate mothers, and the children born through surrogacy. However, the evolving legal framework has prompted a surge in litigation, with petitioners seeking clarity on various provisions and praying for exemptions based on individual circumstances. Constitutional challenges against 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 have also been mounted. The lead petition, filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, besides highlighting various contradictions in the two acts under challenge, also points out that the twin legislation inaugurated a legal regime that was discriminatory and violative of the constitutional rights of privacy and reproductive autonomy. After the top court agreed to hear this challenge against the two acts in September 2022, several other petitions and applications were filed raising similar and related questions, such as...

Supreme Court Redirects Applications Seeking Permission For Surrogacy To High Courts

Awstika Das

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