The Supreme Court on Monday sought responses from the Centre and others on a plea that has challenged certain provisions of the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, claiming that they directly infringe upon the right to privacy and are against the reproductive rights of women.
The plea came up for hearing before a bench of Justices Ajay Rastogi and C T Ravikumar which issued notices to the Centre and others.
The plea, filed by Chennai resident Arun Muthuvel, has said that both the Acts fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques.
"The Surrogacy Act imposes a blanket ban on commercial surrogacy which is neither desirable nor may be effective," said the plea, filed through advocate Mohini Priya.
It said the ban on commercial surrogacy, seemingly enacted to protect the "impoverished women", denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right of giving birth.
It claimed that these two statutes impose a "restrictive regime" which gravely impinges upon the most basic reproductive right of individuals.
"It is humbly submitted that the impugned Acts through their discriminatory, exclusionary, and arbitrary nature, deny agency and autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of the ideal family that restricts reproductive rights," the plea said.
It said that a complete ban on commercial surrogacy is bound to create a black market and therefore, more exploitation.
The plea has sought a direction recognising the rights of women other than married women above 35 years of age to avail surrogacy as a means of assisted reproductive technologies to experience motherhood.
It has also sought a direction striking down the definition of "couple" under section 2(1)(h) of the Surrogacy Act, 2021 and "commissioning couple" in section 2(1)(e) of the Assisted Reproductive Technology (Regulation) Act, 2021; and in the alternative, read down the definitions to include couples other the married man and woman.
The plea said certain provisions of the Assisted Reproductive Technology (Regulation) Act and Rules and the Surrogacy Act and Rules are being challenged on the grounds, including inconsistencies in the two legislations purported to operate in the same field.
"It is submitted that even though the two statutes aim to cater to same and/or similarly places subjects, the two statutes have blatant inconsistencies which create arbitrary classification and categorisation that are not only devoid of logic but also entirely unconstitutional," it said.
The plea has sought to allow compensatory surrogacy within a defined legal structure and framework.
It has also sought a direction to strike down the provisions of the Assisted Reproductive Technology (Regulation) Act imposing rigorous penalties for medical practitioners.