The central government through the ministry of health and family welfare informed the Delhi High Court that the Assisted Reproductive Technology (Regulation) Act, 2021, and Surrogacy (Regulation) Act, 2021, have been enacted so that the procedures followed in the ART and Surrogacy can be regulated appropriately, as per rules and regulations, to restrict sale, purchase, commercialisation, etc, of the embryos, gametes, newborn child, etc.
The response has been filed in a plea challenging the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, and Surrogacy (Regulation) Act, 2021 stating that the provisions are ultra vires of Articles 14 and 21 of the Constitution.
According to the plea, certain of the enactments’ clauses discriminate against unmarried men who want to become surrogate fathers and married women who want to use surrogacy to have more children.
The affidavit submitted that with the enactment of the Acts, the Indian Council of Medical Research (ICMR) guidelines cease to be in force.
The Centre stated that the provisions challenged by the petitioners in the writ petition are to regulate the procedure of the ART and Surrogacy. If these clauses are diluted, the whole purpose of both the Acts shall be defeated.
Additionally, after following due procedure and after receiving comments from all the stakeholders, the Acts were passed by Parliament as per the rules. There is no violation of the fundamental rights of the petitioners. Therefore, no cause of action arises in favour of the petitioners to challenge the provisions of both the Acts, the Centre added.
The plea 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.
The plea further states that Section 4(ii)(b) of the Surrogacy (Regulation) Act, 2021 prohibits all forms of commercial surrogacy and allows only altruistic surrogacy.
As commercial surrogacy is the only option available to the petitioners, they are unable to obtain consent from a woman who fulfils the severity of the eligibility of the surrogate mother, stated the plea.
The ban on commercial surrogacy, seemingly enacted to protect impoverished women, denudes them from their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth, read the plea.
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