Supreme Court - On Constitutionality Of The Surrogacy Act

The Supreme Court stated that changes are necessary to make surrogacy practical. A public interest lawsuit challenging the constitutionality of the Assisted Reproductive Technology (Regulation) Act of 2021 and the Surrogacy (Regulation) Act of 2021 was heard by the Supreme Court's division bench, which is made up of Justices Bela M. Trivedi and Ajay Rastogi.

 

Justice Rastogi said during the hearing that the Surrogacy Act needs to be changed to make its process more practical. The advocate-on-record Mohini Priya was informed that the case should be handled as a representation before the National Assisted Reproductive Technology and Surrogacy Board (the "National Board"), which has knowledge in this area, against the challenges to the various provisions of the law.

 

The petitioner countered that the National Board could only address problems that fell under the Surrogacy Act's narrow definition. The petitioner stated that the court cannot rule on whether the Act is constitutional, including the question of whether particular groups of people have been unfairly excluded. On these topics, the bench has consented to hear from the petitioners.

 

At first, Justice Rastogi was critical of how the National Board operated and even enquired as to how frequently the Board met with the Union Government. It was told that the National Board had just been created by the most current Act. The bench was informed that notices had been issued for the National Board members' appointments. But according to Justice Rastogi, the more Board members are, the more difficult it is to combine everything.

 

The National Board has been given a "peculiar" advisory power, according to the Union Government, so the court should not hear the challenge to the legislation. The Union Government may seek policy advice from the National Board. However, the bench instructed the Union Government to request that the National Board, which was established last month, take into account the petitioners' requests and then promptly file a response.

 

The petitioner's side also made reference to a Kerala High Court ruling. The ART Act's upper eligibility limit of 50 years for women and 55 years for men was challenged in a number of petitions. In a significant ruling, Justice V.G. Arun presided over a single judge bench and noted that the upper age limit was restricting people's fundamental right to procreate and raise families of their own choosing. In a ruling last month, the high court stated that "...the imposition of age restriction, without even a transitional provision, is irrational and arbitrary." -Nandini K & Anr. Versus Union of India & Ors.

 

The petitioners were receiving ART services as of January 25, 2022, and the high court granted them relief so they could continue receiving treatment. The petitioners were concerned that the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, which were in effect prior to the ART Act, only stipulated a minimum age requirement. The petitioners chose ART services because there was no prescribed upper limit, but everything abruptly came to an end with the passage of the legislation. 

 

The Union Government argued that before establishing the upper age limit, the Department-Related Parliament Standing Committee on Health and Family Welfare took into account all pertinent factors. The court did discover that no consideration was given before deciding to prescribe an upper age limit, though.

 

Individual grievances have been sent to the Union Government for urgent consideration with a request to refer them to the National Board. Given that time is of the essence in this case, the bench has insisted that everything be done quickly.

 

A second petition with more than 200 medical professionals has also been listed, according to advocate Priya. It raises objections to a number of onerous and unscientific ART Act provisions, including the oocyte donors' lack of monetary compensation in ‘’in vitro fertilization’’ (or "IVF") and other limitations on the number of donations they are permitted to make. The right of the oocyte donor to donate, which is a part of her reproductive autonomy under Article 21 of the Constitution, is allegedly violated.

 

In addition, she added, the petition also disputed the clause challenging the inclusion of medical professionals in the scope of the Indian Penal Code and the creation of cognizable offences. It has a chilling effect on IVF professionals all over the nation, preventing them from carrying out their professional responsibilities out of fear of being prosecuted. All of these problems together have completely halted IVF procedures using donor eggs.

 

The Union Government has been given notice in this matter by the Supreme Court, who has also tacked on the surrogacy petition. 

 

In Arun Muthuvel versus Union of India & Ors., a division bench of Justices Ajay Rastogi and C.T. Ravikumar heard the petition. The Indian Council for Medical Research, the Union Ministry of Women and Child Development, and the Union Ministry of Health and Family Welfare have all received notices from the bench requesting their responses.

 

The two laws are incompatible with one another. The Surrogacy Act and ART are both in place to address related issues. They do, however, impose arbitrary classifications, such as a maximum age. For example, the ART Act defines a "commissioning couple" as an "infertile married couple" where the woman's age is between 21 and 50. According to the Surrogacy Act, "intending couples" are those who have a medical condition that calls for surrogacy and in which the woman is between the ages of 23 and 55 and the man is between the ages of 26 and 55.

 

Additionally, while couples under the Surrogacy Act are limited to married Indian men and women, "commissioning couples" under the ART Act are not defined by nationality. The Surrogacy Act divides women into two categories: first, under section 4(iii) (c) (I), as part of the intending couple, being a woman between the ages of 23 and 50, and second, as a "intending woman," defined under section 2(1) (s), being an Indian woman who is a widow or divorcee between the ages of 35 to 45 years. The ART Act defines a woman as any woman over the age of 21.

 

On the grounds that Articles 14 and 15 of the Constitution have been violated, there are challenges. Except for married couples and a small group of women, everyone who chooses surrogacy is subject to criminal prosecution under the Surrogacy Act. Without any justification, the ART Act and the Surrogacy Act discriminate and exclude same-sex couples, other LGBTQI individuals, and single women (those who are not widowed or divorced, and those who are widowed and/or divorced and less than the age of 35 or more than 45 years old).

 

Men who are single, infertile couples, and couples in whom one or both partners do not fit the required age ranges are also prohibited.

 

Most significantly, the Surrogacy Act outlaws commercial surrogacy completely, which is neither desirable nor efficient. It prevents them from having any agency over their right to procreate. A sudden, total ban on commercial surrogacy will inevitably lead to a black market and further abuse.

 

While an egg donor is only permitted to contribute once in her lifetime under Section 27(2) of the ART Act, the surrogate is permitted to attempt a surrogacy operation for up to three cycles under the Surrogacy (Regulation) Rules, 2022. This suggests that the availability of egg donors will be severely constrained, and the cost of oocyte procurement will be prohibitive.

 

In cases where the child shouldn't be related to the surrogate mother, the Surrogacy Act only permits gestational surrogacy. However, in order to qualify as a surrogate mother, a woman must share genetics with the intended couple or intended woman. There may be situations where the intended parents and the surrogate mother are related. Thus, the two definitions listed above conflict with one another.

 

The registration fee for a level 1 ART clinic is Rs. 50,000, and the fee for a level 2 ART clinic is Rs. 2 lakhs. The outrageous registration fees for fertility clinics are completely unjustified, unreasonable, and extremely burdensome for medical professionals.

 

In the Explanation to section 4(iii)(a) of the Surrogacy Act, it is stated that a District Medical Board shall be established (I). The parent Act and the applicable Rules do not, however, specify who would make up such a board, how its members would be chosen or elected, or how long they would serve on such a District Medical Board.

 

The requirement of a genetically related surrogate mother would violate the infertile couples' fundamental rights to privacy and reproductive autonomy as surrogacy is a private procedure. Article 21 of the Constitution is broken by it.

 

It would be against their right to privacy for the Surrogacy Act to require the public disclosure of various details about a couple's infertility in the form of a certificate obtained from the District Medical Board under section 4(iii)(a)(I) and the order obtained from Magistrate's court under section 4(iii)(a)(II). Section 22 of the ART Act also requires that insurance coverage be provided for oocyte donors, which could result in the disclosure of the donor's identity, particularly if there is no provision protecting the same.