Why is marital status of women a must for surrogacy high court ask center

Why is marital status of women a must for surrogacy high court ask center

Subject : Polity

Section: Constitutions

Context: The Delhi High Court has questioned the government on why marital status is a requirement for women to be eligible for surrogacy under the law

More about the news:

• The Delhi High Court questioned the government regarding the requirement of marital status for women to access surrogacy under the law.
• The court’s division bench, headed by Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, asked the government’s counsel to explain why a woman’s marital status is linked to her eligibility for surrogacy.
• The government’s counsel said they would seek instructions on this matter, with the case scheduled for the next hearing on October 31.

What is this case all about:

• The case revolves around a 44-year-old single, unmarried woman challenging section 2(1)(s)of the Surrogacy Act that limits surrogacy access to Indian widows or female divorcees, excluding women like her.
• The petitioner also challenges the regulation forcing single women (widows or divorcees) to use their own eggs for surrogacy.
• She argues that her age makes it medically inadvisable to use her own gametes and that she wishes to use donor female gametes.
• Her brother has consented to donate his gametes for genetic connection.
• The plea argues that the Act’s provisions unfairly restrict reproductive choices based on marital status, and the court also requested a medical opinion supporting the petitioner’s inability to use her own gametes.

What is Surrogacy:

• Surrogacy is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple.
• While commercial surrogacy is not allowed in India such procedures are allowed only for altruistic purposes with many restrictions on the person seeking to apply under the law.

What are the Surrogacy Laws:

• In 2021, the Indian Parliament passed two key laws:
  • The Surrogacy (Regulation) Act, which governs surrogacy practice in India. It offers a ten-month gestation period for existing surrogate mothers to safeguard their well-being.
  • The Assisted Reproductive Technology (Regulation) Act, designed to regulate and supervise assisted reproductive technology clinics and banks. This law permits services for women aged 21 to 50 and men aged 21 to 55, covering procedures such as gamete donation, intrauterine insemination, and in-vitro fertilization (IVF).

What is Surrogacy Act 2021:

• The Act sought to regulate the surrogacy part of a rather flourishing infertility industry in the country.
• It is defined as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth.
• Altruistic surrogacy:
• The Act allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy.
• No other monetary consideration will be permitted.
• The intending couple:
  • Any couple that has ‘proven infertility’ is a candidate.
  • The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
  • The former will be issued if the couple fulfills three conditions:
    • A certificate of infertility of one or both from a district medical board;
    • An order of parentage and custody of the surrogate child passed by a Magistrate’s court;
    • Insurance cover for the surrogate mother.
• Eligibility Certificate:
  • An eligibility certificate mandates that the couple fulfill the following conditions:
    • They should be Indian citizens who have been married for at least five years;
    • The female must be between 23 to 50 years and the male, 26 to 55 years;
    • They cannot have any surviving children i.e biological, adopted or surrogate;
    • However, this would not include a ‘child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.’
• Surrogate mother:
  • Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate.
  • She should have been married, with a child of her own, and must be between 25 and 35 years,
  • She can be a surrogate mother only once.
• Regulating Body:
  • The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively.
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.
  • Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
• Offenses:
  • Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.
  • These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.