Despite Clarifying In Court That Surrogate Mother Need Not Be Genetically Related To Child, Centre Refuses To Issue Notification, Petitioners Claim

The Supreme Court was informed on Tuesday that despite issuing an important clarification to an apex court bench regarding the eligibility of a surrogate mother under the existing surrogacy laws in the country, no notification or office memorandum to that effect had been passed by the central government. Advocate Mohini Priya, appearing on behalf of one of the petitioners, submitted that in the absence of a formal directive by the Centre, petitioners could not seek the benefit of the clarifications issued by it. She said: “The government has not issued any notification with respect to their clarification that a surrogate mother need not be genetically related to the child. The government has made its stand very clear with respect to this. But without an official memorandum, doctors and hospitals are not agreeing to go ahead in the manner suggested by the Centre.” A division bench of Justices Ajay Rastogi and Bela M. Trivedi was hearing 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. Justice Rastogi said, “Once a recommendation has been made by the national board and accepted, the government has to issue a notification or a government order with respect to those recommendations.” This would compel every state board and state agencies to comply with the policy of the government, he added. “Your Lordship is right. There were only two positive recommendations, which were followed by notifications,” said Additional Solicitor-General for India Aishwarya Bhati, vigorously disputing the petitioners’ claim. In one of the notifications, it was made clear, she said, that a child gotten through surrogacy needed to only be related to both the intending parents, and not the surrogate mother. However, Priya remonstrated, saying, “This notification deals with a completely different issue. It bans the use of third-party donor eggs by intending couples.” She added that this requirement, which is the subject-matter of one of the challenges, was manifestly arbitrary since donation of eggs was allowed for in vitro fertilisation. “Your Lordship, the form under the rule has been amended by way of a gazette notification,” the law officer told the bench, as she read out the relevant portion from the amended form. The additional solicitor-general added, “To my mind, this notification is sufficient on that issue.” Justice Trivedi said, “This is a matter of interpretation of provisions.” “Yes,” Bhati said, “For any interpretation, I will have to take this court through the ART Act and then the Surrogacy Act. There is an entire architecture.” Justice Rastogi agreed that an extensive examination of the laws under question was required. He firmly said, “Let us first understand the act. Unless we understand it and get a full picture of the system, it would be difficult to take a call. After looking at the act, we will take note of the kind of difficulties individuals and couples are facing.” Besides directing the matter to be listed on Tuesday, May 9, the bench also directed : “Additional Solicitor-General Aishwarya Bhati may submit a response to the interim applications on a common sheet available to all concerned persons as well as this court so that it could pass orders in the separate applications.”Recent verdict by Karnataka High Court on 'genetically related' condition for surrogacyRecently, the Karnataka High Court had also expressed concerns about the condition that the surrogate mother has to be genetically related to the intending couples.The High Court had observed : “Altruistic surrogacy should mean surrogacy by an outsider. The provision runs counter to the philosophy or principle behind the enactment. The words “genetically related” appearing in Section 2(1)(zg) can only mean that the child to be born through surrogacy should be genetically related to the intending couple, failing which, the words genetically related would not have any meaning if it were to be said that the surrogate mother should be genetically related to the intending couple. That defeats both altruism and logic.” Background The lead petition, filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocates Mohini Priya and Ameyavikrama Thanvi, besides highlighting various contradictions in the two acts under challenge, also pointed out that the twin legislation inaugurated a legal regime that was discriminatory and violative of the constitutional rights of privacy and reproductive autonomy. “The impugned acts through their discriminatory, exclusionary, and arbitrary nature, deny agency and autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of ...

Despite Clarifying In Court That Surrogate Mother Need Not Be Genetically Related To Child, Centre Refuses To Issue Notification, Petitioners Claim

Awstika Das

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