Law Says Surrogate Mother May Not Be Genetically Related to Child Born Through Surrogacy, Centre Tells Supreme Court

New Delhi, February 8: The Centre has clarified in the Supreme Court that the surrogacy law says a surrogate mother may not be genetically related to the child born through the process. It has told the apex court that a provision of the Surrogacy Act prescribes that no woman shall act as a surrogate mother by providing her own gametes.

"However, the child to be born through surrogacy must be genetically related to the intending couple or intending woman (widow or divorcee)," the Centre has submitted before the court. Surrogacy Regulation Bill 2016: What is Surrogacy? A Guide To Understanding The Surrogate Birth Procedure.

"It means that the child to be born through surrogacy to the intending couple should be formed of gametes of the intending couple themselves -- sperms from the father and oocytes from the mother," it said.

A bench headed by Justice Ajay Rastogi is hearing a batch of pleas, including one that has challenged certain provisions of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, claiming that these provisions directly infringe upon the right to privacy and are against the reproductive rights of women.

In its submissions before the top court, the Centre said through a notification issued in May last year, it had formed the National Assisted Reproductive Technology and Surrogacy Board under section 17 of the Surrogacy Act and section 3 of the ART Act.

It said under section 25 of the Surrogacy Act, the board has the power to advise the Centre on policy matters relating to assisted reproductive technology and surrogacy and for supervising the functioning of various bodies constituted under the two statutes, including the state boards. The government said the national board is a common body between the Surrogacy Act and the ART Act.

"The Union of India, after deliberations among the members of the national board, has clarified that the Act mandates that the surrogate mother may not be genetically related to the child to be born through surrogacy," it said. It said section 4(iii)(b)(III) of the Surrogacy Act prescribes that no woman shall act as a surrogate mother by providing her own gametes.

The Centre said similarly, the child to be born through surrogacy to the intending woman should be formed of the oocytes of the intending woman herself and the sperm of the donor.

It said section 6 of the ART Act and section 26 of the Surrogacy Act stipulate the constitution of an ART and surrogacy board in all states and Union territories.

"At present, the boards have been constituted in all states and Union territories except the states of Bihar, Uttar Pradesh and Gujarat," it said. The government told the apex court that section 12 of the ART Act and section 35 of the Surrogacy Act provide for the constitution of appropriate authorities in all states and Union territories for the purposes of these statutes.

"It is pertinent to submit that at present, the said appropriate authorities have been constituted by all states and Union territories except the states of Bihar and Uttar Pradesh," it said.

The government said instructions regarding registration of clinics and banks for the ART Act and the Surrogacy Act were issued on January 24, which provide that the clinics and banks that have submitted their application forms for registration to the respective state authorities may be allowed to conduct counselling or procedures pertaining to ART or surrogacy till March 31, subject to certain conditions.

The government has said one of the conditions is that such clinics and banks shall stop conducting counselling or procedures pertaining to ART or surrogacy from the date on which the application submitted for registration is rejected by the appropriate authority by issuing an order, if it happens before March 31.

It said the clinics and banks that have not applied for registration or the applications of which are incomplete or deficient in any respect shall cease to conduct counselling or procedures pertaining to ART or surrogacy and the authorities concerned shall take immediate action and issue necessary orders for their closure forthwith.

One of the pleas filed in the apex court has claimed that both 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," the plea said.

It said the ban on commercial surrogacy, seemingly implemented to protect "impoverished women", denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right to give birth.

The plea has also 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.