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The Delhi High Court on Friday issued notice to the Central government on a petition challenging the constitutional validity of provisions of the Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021.

The court was hearing a petition filed by a single unmarried man and a married woman challenging the provisions of the two Acts on the ground that the laws are discriminatory against a single man desirous of being a father through surrogacy and a married woman who already has a child and is desirous of expanding her family through the means of surrogacy.

A division bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta stated that the matter requires consideration and asked the Central government to file its response within six weeks.

The petition was filed by Karan Balraj Mehta, a single unmarried man and an advocate by profession, and Dr. Pankhuri Chandra, a married woman teaching Psychology in a private school through advocate Aditya Samaddar.

The plea seeks to declare certain provisions of the two Acts to be declared ultra vires the Constitution of India as the alleging that these provisions are discriminatory. 

Plea stated that Section 2(zd) of the Surrogacy (Regulation) Act, 2021 defines “surrogacy” as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.”

Plea further states that Section 4(ii)(b) of the Surrogacy (Regulation) Act, 2021 prohibits all forms of commercial surrogacy and allows only altruistic surrogacy.

As Commercial surrogacy is the only option available to the petitioners they are unable to obtain consent from a woman who fulfills the severity of the eligibility of the surrogate mother, stated the plea.

The ban on commercial surrogacy, seemingly enacted to protect improvised women, de-nudes such women from their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth, read the plea.

"The limitations imposed on who can be a surrogate mother in terms of Section 2 (zg) read with Section 4(iii)(b)(l) of the Surrogacy (Regulation) Act, 2021, limit the option available to an ‘intending couple’ or ‘intending mother’ and diminish their chances of finding a consenting surrogate mother. The best eligibility criteria to maximize the chances of finding the best surrogate mother, in the interest of both the intending couple/intending woman or the surrogate baby, would be any healthy woman above the age of majority. The needless conditions of being genetically related, of a particular age, married, and already having at least one child only constrict the universe of available candidates who may otherwise become healthy surrogate mothers”, further read the plea.

Conclusively, petitioners have challenged the Sections 2(e), 14(2), 21, 27(3) and 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 as well as Sections 2(h), 2(s), 2(r), 2(zd), 2(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C),8 and Section 38(1)(a) of the Surrogacy 57 (Regulation) Act, 2021.

The matter has been listed for further hearing on November 19, 2022.

Case Title: Karan Balraj Mehta and Anr. v. Union of India