Surrogate child, not mother, must be genetically related to intending couple or woman: Modi govt

In a written statement submitted to SC in response to PIL filed last year, govt clarified 'ambiguity' in definition of who could be a surrogate mother under provisions of Surrogacy Act.

Illustration by Arindam Mukherjee | ThePrint

New Delhi: A surrogate mother need not be genetically related to the couple looking to have a baby through surrogacy, or a single woman who wants a child through similar means, the central government has clarified.

In a recent written statement submitted to the Supreme Court Tuesday, the Union Health Ministry cleared the confusion over interpretation of Section 2(1) (zg) of the Surrogacy Act, to say that the baby, and not the surrogate mother, should be genetically related to the couple or the woman who desired to have a surrogate child.

The law prohibits a single man to have a surrogate child.

The ministry’s submission came in response to a Public Interest Litigation (PIL) filed last year, challenging the ban on commercial surrogacy, besides many other provisions of the law.

One of the contentions raised in the PIL was with regard to ambiguity in the definition of a “surrogate mother” under section 2(1) (zg) of the Surrogacy Act.

Section 2(1) (zg) states: Surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4.

A surrogate mother, going by the law, should be a woman who is willing to bear a child through surrogacy, is married and has had a child of her own.

According to the Centre’s written submission, the Surrogacy Act “mandates that the surrogate mother may not be genetically related to the child to be born through surrogacy”.

Advocate Mohini Priya, who filed the PIL, told ThePrint that the Centre’s latest statement does away with the ambiguity that arose in the section owing to the language used to define a surrogate mother. According to her, it had given rise to confusion over who could be a surrogate mother.

“The Act nowhere mentions that a surrogate mother should be a close relative or blood relative. But the way Section 2(1) (zg) is worded, it was interpreted as if only a close relative or blood relative of the couple or the woman who wants to have a surrogate child can be a surrogate mother,” Priya said.

She further added that many surrogacy agreements contained the clause of a close relative being a surrogate mother and this was becoming a major cause of concern in families as it threatened to break familial ties.

The above clarification follows deliberations between the central government and the National Assisted Reproductive Technology and Surrogacy Board (‘National Board’), government advocate and Additional Solicitor General Aishwarya Bhati told the apex court bench led by Justice Ajay Rastogi Tuesday.

‘Child must be from father’s sperm and mother’s ovary cells’

With regard to another demand in the PIL to allow third-party sperm or ovary cell donors, the Centre reiterated the existing legal position that no woman shall act as a surrogate mother by providing her own gametes (ovary cells that form the ova).

The government maintained that a child to be born through surrogacy to an intending couple should be from the father’s sperm and mother’s ovary cells.

As for an unmarried woman, her surrogate child should be formed of her oocytes (ovary cells) and sperms of a male donor.

Priya said this stand of the government vitiates the objective of surrogacy and is contrary to the Assisted Reproductive Technology (Regulation) Act, 2021, a regulatory and legal framework that governs assisted reproductive techniques such as In-Vitro Fertilisation or IVF.

“Couples just don’t go directly for surrogacy. They go through several failed IVF attempts before choosing for surrogacy. In IVF, couples are allowed to use a third-party sperm or egg. There is no logic not to allow it in surrogacy,” she told ThePrint

The Union government also informed the court about instructions given in January for registration of assisted reproductive technology (ART) and surrogacy clinics or banks. It said clinics/ banks that have not applied for registration or “whose applications are incomplete or deficient have been ordered to stop counselling and ART or surrogacy procedures”.

Further, the government told the bench that National Assisted Reproductive Technology and Surrogacy Boards, as mandated under the Surrogacy Act and ART Act, have been constituted in all states and Union Territories, except in Bihar, Uttar Pradesh and Gujarat.

(Edited by Nida Fatima Siddiqui)