[Commercial Surrogacy] Surrogate mother cannot provide own gametes under Surrogacy Act: Central government to Supreme Court

The Central government told the Supreme Court that under the Surrogacy Act, it is not permitted for a surrogate mother provide her own gametes (ova or egg cells) for a child to born out of surrogacy [Arun Muthivel vs Union of India and ors]..In this regard, written submissions filed by the Central government stated the following:The Surrogacy Act mandates that the surrogate mother may not be genetically related to the child to be born through surrogacy. Section 4 (iii) (b) (III) of the Surrogacy Act prescribes that no woman shall act as a surrogate mother by providing her own gametes. The child to be born through surrogacy must be genetically related to the intending couple or intending woman (widow or divorcee). This means that the child to be born through surrogacy to an intending couple should be formed of the gametes of the intending couple themselves i.e. the sperm of the intending father and the oocytes (ovary cells that form the ova) of the mother. Similarly the child to be born through surrogacy to an intending single mother (widow or divorcee) should be formed of the oocytes from the intending woman herself and the sperms of a donor..These submissions were made in response to a public interest litigation (PIL) petition challenging the ban on commercial surrogacy that is pending before the apex court. Notably, the restriction on surrogate mothers from providing their own gametes for the surrogate child is one of the aspects under challenge. .The petitioners have challenged the validity of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as well Rules framed under each Act..In an earlier hearing, the bench of Justices Ajay Rastogi and Bela M Trivedi had asked the petitioners to file necessary representations with the common National Board constituted under both Acts. .The above clarification was issued by the government following deliberations between the Central government and the National Assisted Reproductive Technology and Surrogacy Board (‘National Board’). .The Centre also submitted that instructions have been given on January 24, 2023 for the registration of all ART and Surrogacy clinics/ banks. Clinics/ banks that have not applied for registration or whose applications are incomplete or deficient have been ordered to stop counselling and ART or surrogacy procedures. The concerned authorities have been ordered to take immediate action for the closure of such clinics or banks, the Centre further submitted..The government added that ART and Surrogacy Boards have been constituted in all States and Union Territories, as required under the Surrogacy and ART Acts, except in three States – Bihar, Uttar Pradesh and Gujarat. “Appropriate Authorities”, as required under the two Acts, have been constituted in all States and Union Territories, except Bihar and Uttar Pradesh, the written submissions further disclosed..The lead petition before the Supreme Court has challenged the classification of persons under the scheme of the two Acts, arguing that it is discriminatory, restrictive and violative of Article 14 (right to equality) of the Constitution.The petitioner has urged the Court to issue directions on various aspects, including a declaration that Section 4(iii)(b)(III) (which prohibits any woman from acting as a surrogate by providing her gametes) to be in violation of Articles 14 and 21 of the Constitution.Among other prayers, the petitioner has sought the extension of the option of surrogacy for women above 35 years of age and couples other than married couples. .Another related plea, tagged with the lead plea, has raised concern over lack of provisions for monetary compensation to oocyte donors in In Vitro Fertilisation (IVF) cases. Read more about petition here.