Assisted Reproduction and Surrogacy in India

Guest post by Pallavi Mohan

Recently, the Delhi High Court agreed to hear a petition challenging the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. The petition argues that these Acts are contrary to Articles 14 (right to equality) and 21 (right to life) of the Constitution of India.

What is “assisted reproductive technology”? Why was the Assisted Reproductive Technology (Regulation) Act 2021 enacted?

“Assisted reproductive technology” includes all the techniques used for handling the sperm or the oocyte outside the human body and for transferring the gamete or the embryo into a woman’s reproductive system to make her pregnant.

“Assisted reproductive technology banks” collect gametes, store gametes and embryos and supply gametes to “assisted reproductive technology clinics”, which are equipped with the facilities and doctors needed for transferring the gametes and embryos to a woman’s reproductive system.

The Assisted Reproductive Technology (Regulation) Act 2021   regulates and supervises assisted reproductive technology clinics and banks, and  ensures the safe and ethical practice of assisted reproductive technology services.

What is “surrogacy”? What is the purpose of the Surrogacy (Regulation) Act 2021?

Surrogacy means the practice of one woman bearing and giving birth to a child for someone else, intending to hand over such a child to them after the birth.

The Surrogacy (Regulation) Act 2021 regulates the practice and procedure of surrogacy in India. The Act provides for the constitution of Assisted Reproductive Technology and Surrogacy Boards at the National and State levels.

Why are these two Acts challenged before the Delhi High Court?

Two petitioners — one unmarried man and one married woman who already has a child — desirous to have a child through surrogacy- have challenged these Acts before the Delhi High Court.

They contend that the Surrogacy (Regulation) currently allows surrogacy only for heterosexual couples who have been married for at least 5 years and have no other child – biological, adopted or surrogate – unless such child has a physical or mental impairment or a life-threatening disorder. This limited eligibility criterion excludes single men/women, same-sex couples and married couples who already have a child from exploring the option of surrogacy. The petitioners claim that this violates their right to equality before the law under Article 14 of the Constitution.

It is further argued that reproductive autonomy is a facet of an individual’s privacy, which is a part of the ‘right to life’ under Article 21 of the Constitution. Since a person  has the right to make decisions regarding reproduction , the government  cannot interfere in their decision to procreate, through surrogacy or otherwise. Therefore, any regulation of who can have a child through surrogacy and assisted reproductive technology is arbitrary and contrary to the Constitution.