The Delhi High Court Friday said the law regulating the procedure of surrogacy is intended to curb the exploitation of surrogates and no one wants India to become an "industry of renting a womb."
The court observed while hearing a plea by an Indian-origin couple living in Canada challenging the March 14 notification issued by the Centre amending the Surrogacy (Regulation) Act to ban donor surrogacy by altering Form 2 under Rule 7 of the Surrogacy Rules, 2022. "This reproductive outsourcing was supposed to be curbed by the legislature and that too at the instance of the Supreme Court and we cannot go beyond it," a bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna said.
"This is a beneficial act and it is primarily intended to curb the exploitation of surrogates. India is still a developing country and it's not a fully developed country. Because of economic reasons many people may be swayed towards this and CII (Confederation of Indian Industry) in one of its reports is supposed to have stated that India at one point of time was a 2.3 billion dollar industry," the bench said. The counsel for the petitioners said they were Indian citizens and residing in Canada only for work purposes, responding to which the bench said they could undertake the surrogacy facility in that country itself.
"They are coming to India for a certain reason, because of the economic disparity over here that people can rent a womb. No one wants this country to become an industry of renting a womb. That's not the industry we want to promote. The legislature has taken a call on it," the bench said. It further asked the petitioners what was the harm in going through this procedure in Canada and why they were coming to India for surrogacy when they are settled there. To this, the petitioners' lawyer said their extended family is in India and that they have genuine medical issues.
As the bench said the availing of the facility has to go beyond commercialisation, the lawyer maintained that there was no commercial transaction being entered into by the couple for surrogacy. However, Justice Manmohan responded, "Why will any third person do it? There does not stand any reason." The bench said the option of adopting a child is also available to people and if some good couples are willing to adopt those kids their lives will be changed.
The lawyer, who agreed that adoption should be encouraged, however, added that in the case of adoption, there is no biological connection of the child with the couple. To this, the court said, "…The mindset that adoption should not take place is very wrong. Adoption needs to be encouraged in a country like India." It said there is some intent behind it that is why the executive and legislature has restricted surrogacy and it cannot be said to be arbitrary or irrational or violative of fundamental rights." The fact that there is abuse by this industry is rampant and we have seen it.
According to CII, it became a 2.3 billion dollar industry in India at one point of time. "The same thing is with organ donation. If we allow organ donation in this country half of the poor people will lose their organs, that is why the state has prohibited it. You are not understanding the social dimension of it. You cannot see it only from the prism of your clients, you have to look at it from a larger perspective," the bench said. The counsel representing the authorities told the court that as of now, no surrogacy procedure involving the couple has begun and that it was a premature petition.
The bench said the petition was filed at a premature stage as the procedure for surrogacy of the couple has still not begun. The petitioners said they are Indian nationals who got legally married according to Hindu rites and ceremonies and are permanent residents of India. They added that they are a childless couple and have a medical condition that necessitated gestational surrogacy through which they intended to become parents. It said the couple was granted a certificate of medical indication for surrogacy with a donor oocyte in December 2022, stating that they can undergo a surrogacy procedure as an advanced treatment for infertility.
However, on March 14, 2023, the Centre issued a notification amending the surrogacy regulations and banning donor surrogacy. As the bench was not inclined to entertain the plea, the petitioner's lawyer later withdrew it with the liberty to file afresh in case the need arose.
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