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Surrogacy law: Delhi HC seeks Centre’s stand on challenge to provisions

The Delhi High Court Friday sought the Centre’s stand on a petition challenging the exclusion of a single man and a married woman having a child from the benefit of surrogacy as a reproductive choice as well as the requirement of the exercise being an altruistic surrogacy only. A bench headed by Acting Chief Justice Vipin Sanghi and Justice Sachin Datta issued notice on the petition by Karan Balraj Mehta, a single unmarried man, and Dr. Pankhuri Chandra, a married woman and a mother of one child.

The court granted six weeks to the central government to file its response to the petition and listed it for further hearing on November 29.

“This requires consideration”, said the court on the petition which assails the validity of certain provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021.

The petitioners have contended that they stand ousted from availing the benefit of surrogacy as a reproductive choice which is discriminatory and in violation of Articles 14 and 21 of the Constitution.

“Petitioner No. 1 (being a single male) is arbitrarily ousted from any benefit under the impugned Acts at all whereas, Petitioner No. 2 (being a married woman and a mother), not being able to find and obtain consent from an eligible surrogate mother cannot avail of surrogacy as a reproductive choice and is also barred under the Acts as she does not have medical indication necessitating surrogacy,” the petition has said.

The petition, filed through lawyer Aditya Samaddar, has challenged the constitutionality of Sections 2(e), 14(2), 21, 27(3) and 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 and sections 2(h), 2(s), 2(r), 2(zd),2(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C),8 and Section 38(1)(a) of the Surrogacy (Regulation) Act, 2021.

The provisions pertaining to the regulation of surrogacy and surrogacy procedures.

The petitioners have stated that commercial surrogacy is the only option available to them but the “ban on commercial surrogacy robs them of the option”.

“The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away,” the petition has said.

“The Petitioners beseech this Hon’ble Court to intervene in the matter and allow the Petitioners the dignity to firstly, keep private their reproductive choices and secondly, to exercise their reproductive choices to their satisfaction and desire of having a family (wrt Petitioner No. 1) and or a family of a size they decide (Petitioner No. 2),” it added.

It is argued that the best eligibility criteria to maximise the chances of finding the best surrogate mother would be any healthy woman above the age of majority and “the needless conditions of being genetically related, of a particular age, married and already having at least one child only constrict the universe of available candidates who may otherwise become healthy surrogate mothers.”

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