Nobody wants India to become an industry of renting a womb: Delhi HC on misuse of surrogacy

The Delhi High Court of India on Friday said that “nobody wants India to become an industry of renting a womb”, and the law regulating the procedure of surrogacy is intended to curb the exploitation of surrogates, reports The Indian Express.

A division bench of acting Chief Justice Manmohan and Justice Mini Pushkarna made the observation while hearing a plea by an Indian-origin couple living in Canada challenging the March 14 notification issued by the Centre amending the Surrogacy (Regulation) Act to ban donor surrogacy by altering Form 2 under Rule 7 of the Surrogacy Rules, 2022.

While hearing the matter, the bench pointed to the statement of objects and reasons of the Surrogacy Regulation Act and orally observed, “This is a beneficial act and is primarily intended to curb the exploitation of surrogates. India is still a developing country; because of economic reasons many people may be swayed towards it. The CII (Confederation of Indian Industry) in one of its reports is supposed to have said that the surrogacy industry at one point of time was about 2.3 billion dollars in India. This ‘reproductive outsourcing’ was supposed to be curbed by the legislature.”

When the petitioner’s counsel said that the couple were Indian citizens, the bench said, “But they are residing in Canada. If they are residing there then they can undertake the facility available. Everyone is coming to India because of the economic disparity here that people can rent a womb. No one wants this country to become an industry of renting a womb; it’s not an industry you want to promote. The legislature has taken call on it and that too at the instance of the SC.”

The petitioners said they are Indian nationals who got legally married according to Hindu rites and ceremonies and are permanent residents of India. They added that they are a childless couple and have a medical condition that necessitated gestational surrogacy through which they intended to become parents.

The plea said the couple requested for surrogacy with oocyte donation where embryos were to be transferred into the uterus of the surrogate mother. The embryos were to be created from donor oocytes and sperm of the husband.

It said the couple was granted a certificate of medical indication for surrogacy with a donor oocyte in December 2022, stating that they can undergo a surrogacy procedure as an advanced treatment for infertility. However, on March 14, 2023, the Centre issued a notification amending the surrogacy regulations and banning donor surrogacy.

The counsel appearing for the authorities submitted that the petitioners do not fall under the notification, and in the couple’s case, “surrogacy is only advised” while “no surrogacy procedure has even begun”.

The high court thereafter said that it would not consider a premature petition. After some arguments, the petitioner’s counsel withdrew the plea with the liberty to file afresh in case the need arises, with the high court observing that the rights and contentions of all the parties are left open.

During the hearing, the high court also remarked there were alternatives available to the petitioners such as adoption which “needs to be encouraged”. The bench thereafter said, “No one is adopting children over here. Please see the plight of these children. Their life will change if some good couples are willing to adopt them. Legislature has restricted it, there is some intent behind the act and it cannot be called arbitrary, irrational or violative of Article 14 of Constitution.”