The Delhi High Court, hearing a plea by an Indian-origin couple residing in Canada, on Friday said that the legislation governing surrogacy aims to prevent the exploitation of surrogates, discouraging India from becoming an “industry of renting a womb”.
The couple challenged the March 14 notification amending the Surrogacy (Regulation) Act to prohibit donor surrogacy.
A bench of acting Chief Justice Manmohan and Justice Mini Pushkarna stated that the legislative intent is to curb the exploitation of surrogates, particularly in a developing country like India.
“This reproductive outsourcing was supposed to be curbed by the legislature and that too at the instance of the Supreme Court and we cannot go beyond it,” it said.
The bench referred to economic factors that might lead individuals to choose surrogacy and underscored that the law addresses the need to prevent India from becoming a commercial hub for surrogacy.
As it questioned the petitioners’ decision to seek surrogacy in India when settled in Canada, the petitioners’ lawyer cited their extended family’s presence in India and genuine medical issues.
However, the court stressed the importance of ensuring surrogacy goes beyond commercialisation and questioned the necessity of opting for surrogacy in India.
While noting the option of adoption, the court encouraged adoption as a positive alternative, saying that adoption can positively impact children’s lives.
The judges highlighted the societal dimensions and potential abuses in the surrogacy industry, expressing concerns about commercial transactions.
It rejected the argument that the surrogacy law is arbitrary or irrational, noting the legislature’s intent to restrict surrogacy due to rampant abuses. The bench urged the need to consider the broader societal perspective rather than individual interests.
Authorities’ counsel informed the court that no surrogacy procedure involving the couple had commenced, categorising the petition as premature. The bench agreed, stating that the petition was premature as the surrogacy procedure for the couple had not yet begun.
The petitioners, Indian nationals who legally married according to Hindu rites, withdrew their plea before the Delhi High Court. The childless couple, permanent residents of India, cited a medical condition requiring gestational surrogacy for parenthood.
They obtained a certificate of medical indication for surrogacy with a donor oocyte in December 2022.
However, the March 14, 2023, notification by the Centre amended surrogacy regulations, prohibiting donor surrogacy. Despite their initial plea, the bench showed disinclination to entertain the case. Subsequently, the petitioners’ lawyer withdrew the plea with the liberty to file afresh if necessary.
20231215177683
