Centre Suggests Eleven Issues For Supreme Court's Consideration In Pleas Challenging Provisions Of Surrogacy Act & Assisted Reproductive Technology Act

During the hearing today, the Court asked the parties whether there is a link between both the statutes and, therefore, whether challenges to provisions of both statutes should be decided together. It was the submission of the Centre that challenges to provisions of both statutes should be considered one after the other and not together.

The Court found that in some cases, provisions of both statutes have been challenged in the same petition.

The Bench of Justice B.V. Nagarathna and Justice Augustine George Masih said “We will only take matters and issues related to the Surrogacy Act. We will have to concentrate on the scheme and the framework of the Surrogacy Act…We can’t hear the challenge of the two Acts hand in hand…you may draw reference to another Act but you all will be losing your focus if you challenge both Acts in the same petition…It is submitted that in certain writ petitions, the provisions of both the Surrogacy and ART Act are assailed. However, it is not ascertained that there is a linkage in the challenge of the provisions, and therefore, the question arises as to whether both challenges have to be considered simultaneously. First, give us the answer to this.”

ASG Aishwarya Bhati, on behalf of the Union Government, submitted that they have framed several issues for consideration in the matter. She suggested that separate petitions should be filed with respect to both statutes and that they may be heard one after the other.

The issues suggested by the Union Government with respect to the Surrogacy (Regulation) Act, 2021 are as follows:

“1. Whether the prohibition of commercial surrogacy under Sections 4(ii)(b) & 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?

2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as provided in Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?

3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as provided under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, is constitutional?

4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?

5. Whether individuals who initiated the process of availing surrogacy prior to the enactment of the Surrogacy (Regulation) Act, 2021 have any right to avail surrogacy in a manner beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?"

A lawyer for a petitioner then submitted that one issue which is left out is the legality of the exclusion of single men from the purview of the Surrogacy Act. She also submitted that one of the issues which should be included relates to the restriction on monetary compensation to egg donors i.e. Sections 29 and 33 of the ART Act, 2021.

Senior Advocate Jayna Kothari appeared for one of the Applicants and submitted, “The IA that I have filed is on the issue of law, which relates to the exclusion of single unmarried women.”

As regards the Assisted Reproductive Technology (Regulation) Act, 2021, the Union suggested the following issues:

“1. Whether the right to avail assisted reproductive technologies being available for only married couples where the woman is between the age of 21 and 50 years and the man is between the age of 21 and 55 years as provided under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, is constitutional?

2. Whether an oocyte donor being permitted to only donate her oocytes once in her life under Section 27(4) of the Assisted Reproductive Technology (Regulation) Act, 2021 violates the reproductive autonomy of women and is, therefore, unconstitutional?

3. Whether Section 21(b) of the Assisted Reproductive Technology (Regulation) Act, 2021 ought to be read down in order to permit an ART clinic to perform a donor cycle without the involvement of an ART bank?

4. Whether Section 33 of the Assisted Reproductive Technology (Regulation) Act, 2021 prescribing offences, penalties and imprisonment for violations under the Assisted Reproductive Technology (Regulation) Act, 2021 is constitutional?”

5. Whether the requirement of consent of both husband and wife to avail an ART procedure as prescribed under Rule 13(1)(f)(iii) read with Form 8 of the Assisted Reproductive Rules, 2022 is legally sustainable?

6. Whether individuals who initiated the process of availing an ART procedure by freezing their embryos prior to the enactment of the Assisted Reproductive Technology (Regulation) Act, 2021 have any right to avail an ART procedure in a manner beyond the scope of the Assisted Reproductive Technology (Regulation) Act, 2021?"

The lead petition is a PIL filed through Advocate Mohini Priya, which challenges Section 2(s) of the Surrogacy Act, 2021, which excludes unmarried women from the scope of the definition of ‘intending woman’.The PIL was filed by an infertility specialist from Chennai, Tamil Nadu, Dr. Arun Muthuvel, challenging various contradictions in 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. It was also alleged that the legislation is discriminatory and violative of the constitutional rights of privacy and reproductive autonomy. In January 2023, the Apex Court issued the notice in the petition.

Cause Title: Arun Muthuvel V. Union Of India (W.P. (C) No. 756 of 2022)