A child conceived with the aid of science is nonetheless a gift of God in the parent’s eyes. Across India, we find thousands of such children. Some are still pre-schoolers, others now have kids of their own. But if the Surrogacy (Regulation) and Assisted Reproductive Technology (Regulation) Acts had been in place, many of these children might never have been born. A sobering thought.
Against this backdrop, it’s heartening to note that the judiciary is questioning some of the blatantly discriminatory rules framed under the SR and ART Acts of 2021. These arbitrary provisions are based on the gender, marital status, reproductive history, age and sexual orientation of those seeking access to assisted reproductive technology. Surrogates, too, are subject to stringent criteria, without any rational basis.
As observed in this column back in 2021, these ill-conceived pieces of legislation were bound to be challenged. Sure enough, there have been a spate of petitions in the apex court and the high courts. One such plea, a public interest litigation, has impugned the constitutionality of the SR and ART laws before the Supreme Court. Another petition highlights the fact that single men (and never married single women) and mothers cannot seek a child through surrogacy. In yet another plea, infertility specialists have pointed out that the laws violate a woman’s right to donate her eggs multiple times if she so chooses. The blanket ban on commercial surrogacy not only robs women of agency, but denies infertile couples a chance to become parents.
The end result is that those whom the Indian state regards as ‘outliers’ are excluded from parenthood: single men and women (except those who are widows and divorcees), the middle-aged and the LGBTQ community. The efficacy and fairness of any system is judged on its capacity to address the concerns of outliers. There are more single women in India than ever before, yet society and the state continue to treat them as aberrations. The SR and ART Acts are a case in point. Nor do these Acts respect the reproductive autonomy of women.
On October 9, the Delhi High Court called into question a notification under the SR Act disallowing an infertile woman from using a donor egg to achieve a surrogate pregnancy. The petitioners were granted interim relief, and allowed to go forward with the procedure. A day later, the same bench took up the issue of whether the age restrictions under section 4 of the SR Act are valid. It granted interim relief to a couple which fell outside the age bracket (23 to 50 years for women and 26-55 years for men) and permitted the surrogacy procedures to proceed, relying on a previous order of the Kerala High Court in a similar matter.
Then, on October 16, the Delhi High Court issued notice to the Central government, asking why a single, unmarried woman could not avail of surrogacy. The petitioner in this case was 44, had never been married and could not use her own eggs for surrogacy. Under the existing law, she is disqualified for the absurd reason that she is neither a widow nor a divorcee. Besides, being of a certain age, she cannot use her own gametes. But the rule says she cannot use donor eggs.
In her petition, she also asked why the law fixed the age of the “intending” single woman at 35 to 45 years, while it was 23 to 50 years for a married woman. Like Delhi High Court Chief Justice Satish Chandra Sharma, one can only wonder why the marital status of a woman determines her eligibility to opt for surrogacy. In this context, it is pertinent to point out that the SC last year held that there could be no differentiation between married and unmarried women with regard to the right to terminate a pregnancy.
Reproductive rights implies the freedom to make decisions concerning one’s body without state interference: the right to decide when and how to have children and with whom. This includes the right to act as a surrogate. Several studies indicate that women who became surrogates did so not because of poverty or coercion, but as a way of contributing to their family’s well-being and simultaneously helping someone in need. In effect, it was a ‘win-win’ for all parties involved.
Reproductive autonomy also applies to the right to terminate a pregnancy. A 24-week limit has been set because the fetus may be periviable - able to survive outside the womb - at that stage. As far as scientists can tell, a fetus is not sentient until 28-30 weeks into the pregnancy. The limit can be breached in case the fetus is not normal, or threatens the life of the mother. The Bombay High Court recently denied permission to terminate a healthy 26 week pregnancy, but allowed another woman to do so at 33 weeks, because the fetus suffered from severe abnormalities.
By and large, the judiciary has been in favour of reproductive autonomy. Hopefully, that tradition will continue and induce the state to roll back the contentious provisions of the SR and ART Acts.
Bhavdeep Kang is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author
