New Delhi: During a routine doctor’s visit eight years ago, a 34-year-old Chennai man found out his wife was suffering from uterine cancer. Before she underwent surgery in 2021, the couple decided to freeze two of her eggs. They, however, knew their chances of conception with just two eggs were low and decided to opt for surrogacy instead.
That is, until The Surrogacy (Regulation) Act, 2021, dashed their hopes. His wife couldn’t provide her gamete, or egg cells, for conception — something the law requires.
“We might need donor eggs, but the law doesn’t allow us,” the husband, one of the petitioners against the law, told ThePrint.
He filed his petition in the Supreme Court last March and the case has come up for hearing twice so far.
In an affidavit before the apex court, the central government called the Surrogacy Act a “unique amalgamation of social, ethical, moral, legal and scientific issues”.
The affidavit, submitted by the Union Ministry of Health and Family Welfare last month, said the law is “necessary to harmonise the conflicting interests inherent in the process of surrogacy to ensure the betterment of the child while protecting the rights of a surrogate mother”.
The National Assisted Reproductive Technology and Surrogacy Board has declined to accommodate the suggestions made in the petition to relax several provisions of The Surrogacy (Regulation) Act, 2021, the government said in the affidavit, which ThePrint has seen.
The board is the authority designated by the law to advise the central government on policy matters relating to assisting reproductive technology and surrogacy.
The affidavit also shows that the board has disagreed with several demands made by petitioners, such as allowing single women to opt for surrogacy and changing the definition of a couple under the law.
But as the court hearings continue, time’s running out for petitioners like the Chennai resident, who says he has only two choices — surrogacy or adoption.
“My parents will not accept adoption and I’m not in a position to tell them everything,” he said, adding that the court is now scheduled to hear the case on 21 April.
Speaking to ThePrint, the petitioner’s advocate Mohini Priya said, “The central government in their affidavit has replied to all our contentions in a vague and mechanical manner, not based on any sound constitutional or legal reasoning.”
“Moreover, none of the scientific and constitutional issues raised in the petition have been answered by them which essentially implies that they remain uncontroverted. Infertility has now been classified as a disease by the WHO and a recent study revealed that one out of six people suffer from infertility globally. In this situation government policies should be enabling rather than restricting, so that advancement in medical technology can come to the rescue of millions of childless couples,” she added.
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What the surrogacy board says
The Modi government passed the Surrogacy (Regulation) Act, 2021, with the stated aim of protecting women’s reproductive rights. The law not only bans commercial surrogacy but, in conjunction with the Assisted Reproductive Technology (Regulation) Act 2021 (ART Act), also aims at regulating the multimillion-dollar industry of reproductive medicine.
The petition before the court has asked for several changes to the law, such as permitting unmarried women to opt for surrogacy, bringing down the age of a couple seeking a surrogate, and allowing commercial surrogacy.
The central government’s affidavit says the National Assisted Reproductive Technology and Surrogacy Board held a meeting to discuss the law in January this year and concluded that the existing provisions didn’t require any alterations.
According to the minutes of the meeting, which the health ministry attached to the affidavit, the board believes that given the societal norms, the law in its current form “appears appropriate”.
“The laws on surrogacy as they stand today, and as is evident from the central government’s affidavit, seem to be based more upon social acceptance and morality and in a way stigmatise infertility treatments, which is an absolutely regressive approach,” said Priya. “The complete ban on commercial surrogacy, which is meant to prevent exploitation of surrogate mothers will, in fact, prove to be counterproductive and open underground markets for surrogacy. The rich will get away and the only people who will suffer because of these restrictive laws are the poor and middle class.”
The ministry also did not agree with the petitioners’ idea to recognise the rights of a married couple that aren’t between 23 and 50 years — the age group that can opt for surrogacy under the law.
In addition, the board also disagreed with the proposal to allow all single women, and not just those who are divorced, separated, or are widows, to opt for surrogacy, the minutes show.
Further, the petitioners’ plea to read down the definition of a couple, which, according to the law, means an infertile married couple, was also turned down.
The board also didn’t agree to allow couples suffering from secondary infertility to opt for surrogacy, the health ministry affidavit says.
“In an important recent development, the central government in their affidavit issued a clarification which is now an amended Rule, that the use of donor eggs be barred for surrogacy for married couples and single women (widows and divorcees),” said Priya.
“This amendment is a result of complete non application of mind and is not only a violation of Articles 14 (equality) and 21 (protection of life and personal liberty) of the constitution, but essentially negates the very purpose of surrogacy as a medical necessity rather than a choice in 99 per cent of the cases,” she added.
According to the surrogacy law, a couple not having any surviving child biologically or through adoption or surrogacy is allowed to have a surrogate child.
It also makes an exception for a couple with a child that suffers from mental or physical challenges or life-threatening disorders or illnesses with no permanent cure. The board decided to retain this provision, the affidavit shows, arguing that it was needed to “ensure maximum safeguard to women likely to be exploited while acting as surrogate”.
Another demand to relax the onerous conditions imposed on a surrogate mother as regards her age, marital status, and the number of times she could be a surrogate was also rejected, the affidavit shows.
Delay, fears
The central government may have decided to keep the law in its current form, but for some petitioners, the clock is ticking.
A 35-year-old petitioner from Bengaluru is now considering moving abroad. She has an 11-year-old son from her first marriage but her pregnancy with her second husband ended with premature delivery and the infant’s death.
“We were informed by doctors that these complications might or might come up the second time, which is why we thought of surrogacy,” she told ThePrint.
The law, however, prevents her from opting for surrogacy because she has a son.
“I’m already 35. How much longer can I wait?” she asked.
For the Chennai resident quoted above, as the court hearings continue, another fear lurks.
“My family doesn’t know about my wife’s cancer. I fear they will push me for a second marriage if they learn that my wife cannot conceive a child,” he said.
(Edited by Uttara Ramaswamy)
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