No woman can act as surrogate mother by providing her own gametes, Centre tells Supreme Court
New Delhi, February 8
Noting that the child to be born through surrogacy must be genetically related to the intending couple or intending woman (widow or divorcee), the Centre has told the Supreme Court that the Surrogacy Act does not permit a surrogate mother to provide her own gametes (ova or egg cells).
Responding to a PIL challenging ban on commercial surrogacy, the Centre has clarified that a surrogate mother may not be genetically related to the child born through the process as the Act prescribes that no woman shall act as a surrogate mother by providing her own gametes.
“It means that the child to be born through surrogacy to the intending couple should be formed of gametes of the intending couple themselves — sperms from the father and oocytes from the mother,” it said.
Similarly, the child to be born through surrogacy to the intending woman should be formed of the oocytes of the intending woman herself and the sperm of the donor, the Centre said in its written submission filed in the top court in response to a PIL challenging ban on commercial surrogacy.
The Supreme Court had in September 2022 issued notice to the Centre and the Indian Council of Medical Research (ICMR) on a petition filed by Arun Muthuvel challenging the validity of the Surrogacy (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Act, 2021 and the Rules framed under the two laws.
The petitioner contended that the provisions of the two Acts directly infringed upon the right to privacy; went against the reproductive rights of women; and fell short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques.
“The Surrogacy Act imposes a blanket ban on commercial surrogacy, which is neither desirable nor may be effective,” the petitioner said, adding the ban on commercial surrogacy, seemingly implemented to protect “impoverished women”, denudes surrogates of their right over their bodies and denies them the opportunity to exercise agency over their right to give birth.
The petition also sought a direction to recognise the rights of women other than married women above 35 years of age to avail surrogacy as a means of assisted reproductive technologies to experience motherhood.
