Surrogacy law made to prevent India from becoming country of renting wombs: HC

The law regulating surrogacy is beneficial legislation formulated to curb exploitation and prevent India from becoming a country of renting wombs, the Delhi high court said on Friday while refusing to allow a couple to process surrogacy halted after the ban on donor gametes.

The couple commenced the process in 2022 by submitting the relevant form. The authorities accepted the form but halted the process in July in compliance with the notification issued in March for an amendment to Paragraph 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.

In their plea, the couple said the government does not have the power to make rules in contravention of the provisions of the Surrogacy (Regulation) Act.

The court said the restrictions introduced via the notification in March were not off the cuff but had some rationale.

The amendment restricted single women from undergoing surrogacy and only allowed widows or divorcees to resort to the procedure.

“Very...stringent Act has been brought...a large number of studies show that India had become the capital of surrogacy...they wanted to change it...thus they bought about this Act. This is beneficial...to curb the exploitation of surrogates,” a bench of acting chief justice Manmohan and justice Mini Pushkarna told the petitioner’s lawyer.

It added India is not a developed country. “... because of economic reasons, many people may be swayed.” The bench said this reproductive outsourcing was supposed to be curbed by the legislature on the Supreme Court’s directions.

On October 10, the Supreme Court said the insistence on only using the egg and the sperm of an intending couple for gestational surrogacy was prima facie against Rule 14(a). It said the Surrogacy (Regulation) Rules allowed a woman to opt for gestational surrogacy if she has no uterus or an abnormal uterus.

A coordinate bench of the high court on October 9 ruled that the ministry of health and family welfare’s notification in March barring the use of donor gametes for an intending couple wanting to undergo surrogacy prima facie violates the basic right of a married infertile couple to parenthood.

The ministry in October said that the notification was issued after due consideration of experts from the National Assisted Reproductive Technology and Surrogacy Board. It added that the Surrogacy (Regulation) Act prescribed a child to be genetically related to both parents. The ministry said a child not biologically related to a couple was at risk of being rejected and abandoned.

Justice Mini Pushkarna cited the number of children available for adoption. “If there are medical problems, there are other options too. If the legislature and executive have restricted it...there has to be some reason. Let us not call it arbitrary. They are restricting the concept of surrogacy to very limited grounds. If you see this Act, there is a rationale and it is not something off the cuff that they are doing it.”

Justice Mini Pushkarna added if the regulation supports the intent of the law, then how can it be called arbitrary? “The Act gives a limited ground...we cannot extend the grounds...regulations have also clarified [them].”

Justice Mini Pushkarna called the mindset that adoption should not take place wrong. “Adoption needs to be encouraged in India. According to the Confederation of Indian Industries...this [surrogacy industry] was a $2.3-billion-dollar industry at some time. We cannot go beyond what the state is thinking...the state is thinking because the Supreme Court prompted it to think. We have to see society’s rights...society cannot be abused...society’s rights come at a higher pedestal than individuals.”