The petitioner have asked the court to allow them the dignity to keep their choices private.
The Delhi High Court on Friday issued notice to the Centre on a petition challenging provisions of the Surrogacy Act and the Assisted Reproductive Technology (ART) Act on the ground that the laws are discriminatory against a single man desirous of being a father through surrogacy and a married woman who is desirous of expanding her family through the means of surrogacy.
The bench of Justice Vipin Sanghi and Justice Sachin Datta sought a response from the Union of India through the Ministry of Law and Justice in the said matter and scheduled its next hearing for November 19, 2022.
The plea also sought a declaration of certain provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 (Act No. 42 of 2021) and the Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021) be declared ultra vires the Constitution of India as the said provisions are allegedly discriminatory.
The petition has been moved by two petitioners-- Advocate Karan Balraj Mehta, a single unmarried man claiming to be desirous of being a father by the means of surrogacy, and a married Psychology teacher Pankhuri Chandra, claiming that she is desirous of having a child only through surrogacy.
The plea also stated that Section 2 (zd) of the Surrogacy (Regulation) Act, 2021 defines "surrogacy" as "a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth".
It further stated that Section 4(ii)(b) of the said Act prohibits all forms of commercial surrogacy and allows only altruistic surrogacy. "Commercial surrogacy is the only option available to the petitioners as they are unable to obtain consent from a woman who would fulfill the rigors of the eligibility of a surrogate mother," it said.
"The ban on commercial surrogacy, seemingly enacted to protect the impoverished women, denudes them of their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth," the plea read further.
According to the plea filed, the limitations imposed on who can be a surrogate mother in terms of Section 2 (zg) read with Section 4 (iii)(b)(I) of the Surrogacy (Regulation) Act, 2021, limits the options available to an 'intending couple' or 'intending woman' and diminish their chances of finding a consenting surrogate mother.
"The best eligibility criteria to maximize the chances of finding the best surrogate mother (in the interest of both the 'intending couple' and the 'intending woman' or the surrogate baby) would be any healthy woman above the age of majority. The needless conditions of being genetically related, of a particular age, married, and already having at least one child only constricts the universe of available candidates who may otherwise become healthy surrogate mothers," it read.
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