Supreme Court seeks Central government response in plea challenging blanket ban on commercial surrogacy

The Supreme Court on Monday sought the response of the Central government and the Indian Council of Medical Research (ICMR) in a plea challenging the vires of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, as well Rules framed under each Act. [Arun Muthuvel v. Union of India and ors].A Bench of Justices Ajay Rastogi and CT Ravikumar issued notice to the Union Ministries of Health and Women & Child Development after hearing Advocate Mohini Priya, through whom the public interest litigation (PIL) was filed. .The PIL challenges the classification of persons - be it couples or married men or women - under the scheme of the two Acts, arguing that it is discriminatory, restrictive and violative of Article 14 of the Constitution.Further, it is contended that the two Acts have lead to a direct infringement of reproductive rights of women, which is integral to the right to privacy guaranteed under Article 21.An unreasonable blanket ban on commercial surrogacy while allowing only altruistic surrogacy can lead to further exploitation of women within the family and unregulated markets, it is submitted."...both the impugned Acts fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques. It is submitted that in turn the two statutes impose restrictive regime which gravely impinges upon the most basic reproductive right of individuals. The two statutes, in fact, fail to imagine the various social and economic complexities of infertility and assisted reproduction, leave alone address the satisfactorily.".Pertinently, the plea identifies that the following groups are excluded from the ambit of availing surrogacy services under the current scheme:(a) Same-sex couples and other members of the LGBTQ community; (b) Single women who are neither widowed nor divorced;(c) Single women who are widowed and/or divorced and less than the age of 35 or more than 45;(d) Single men; (e) Couples suffering from secondary infertility;(f) Couples where either partner does not fall within the defined age brackets;(g) Couples where both partners are outside the defined age bracket..The PIL accordingly seeks directions towards:Recognising rights of women, other than married women above thirty-five years of age, to avail surrogacy as a means of assisted reproductive technique to experience motherhood; Striking down the definition of a 'couple' under Section 2(1)(h) of the Surrogacy Act, 2021 and of 'commissioning couple' in Section 2(1)(e) of the ART Act, 2021; or read down the said definitions to include couples other than married couples; Striking down/rephrasing the definitions of 'gestational surrogacy' and 'surrogate mother' in order to align them with each other; Allowing compensatory surrogacy within a defined legal structure and frameworkPrescribing a time limit for issuance of essentiality certificate by the District Medical Board and further, come up with a provision for appeal/reviewStriking down Section 27(6) mandating a donor bank to obtain Aadhaar details of each donorDeclaring Section 4(iii)(b)(III) [that prohibits any woman from acting as a surrogate by providing her gametes] to be in violation of Articles 14 and 21 of the ConstitutionStriking down the provisions of the ART Act imposing rigorous penalties for medical practitionersReducing the onerous requirements for registration of ART Clinics including 'exorbitant' registration feesExpediting transitional provisions, and during the transitory period, not taking any coercive action against medical practitioners involved in Assisted Reproductive Techniques..Advocate Ameya Vikram Thanvi also appeared for the petitioner.