Point of Law: Section 4 deals with regulation of surrogacy and surrogacy procedures.

ORDER :

“All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood,” says Robert Brown. The altered perspective is what forms the kernel of this conundrum.

The petitioners are before this Court calling in question validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as ‘the Act’ for short).

2. Shorn of unnecessary details, facts in brief, are as follows:

The petitioners are husband and wife, from their wedlock had a son. The mother owing to certain health problems, undergoes surgery for removal of her uterus and, therefore, the uterus is no longer a part of the body of the mother. The son of the petitioners, completes his MBBS course and was undergoing internship at a College in Mangalore. The son on 13-12-2022, dies due to a road traffic accident. The couple on losing their son go into depression.

3. The 1st petitioner is working as a First Division Assistant in the Government Arts College, Bengaluru and the second petitioner is a home maker and a business woman, is what is averred in the petition. The further averment in the petition is that, the 1st petitioner visited several Shishu Kendras/ home for children, who informed him about the process of registering with Central Adoption Resource Authority, which is a nodal body of the Central Government monitoring and regulating in-country and inter-country adoption under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The 1st petitioner was told that there is large number of prospective parents registered in the organization and it would take minimum of 3 years for the petitioners to get a child in adoption. Later on medical consultancy, the petitioners come to know that they could have a child by way of surrogacy, within nine months and are told that surrogacy is regulated by the Surrogacy (Regulation) Act, 2021 (‘the Act’ for short) and the Surrogacy (Regulation) Rules, 2022 framed under the Act.

4. In furtherance of the intention of the petitioners to have a child on surrogacy, the sister-in-law of the 1st petitioner, one Smt. S.M. Prathiba comes forward to donate her egg and a close family friend Smt. Priyasarvanan, aged about 25 years and a mother of two children had agreed to be a surrogate mother and the sperm of the 1st petitioner would be used to fertilize the donated egg. It is averred that, it is purely for altruistic purpose and no commercial intentions are behind it. What comes as an embargo, are the provisions of the Act which prohibit the petitioners and the like to have a child by way of surrogacy. It is in the wake of provisions of the Act placing such embargo and the desire of the 2nd petitioner to become a mother by surrogacy, has led the petitioners to this Court, in the subject petition, calling in question those provisions which place an embargo upon the intention of the petitioners to have a child by way of surrogacy.

5. Heard Sri A. Sampath, learned counsel appearing for the petitioner and Sri M.N. Kumar, learned Central Government Council appearing for respondents 1 and 2.

6. The learned counsel appearing for the petitioners would submit that the petitioners were a happy family of couple with a child/ boy, who was about 23 years old. The boy meets with a road accident and dies. On the death of the only child, the health of the 2nd petitioner began to completely deteriorate due to acute depression. The couple then wanting another child by way of adoption, were told that it is going to take 3 or 4 years and on further consultation told that surrogacy was the only method to bear the child. Sister in-law of the 1st petitioner who is 35 years old has come forward to donate her egg and a family friend aged 25 years and having two children has agreed to be a surrogate mother and the sperm of the 1st