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Delhi High Court issues notice to Centre on plea challenging Surrogacy Act

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The Delhi High Court on Friday sought response from the Centre within six weeks on a plea challenging the provisions of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta, while issuing notice, orally observed that the issue required consideration and posted the matter for November 29. 

At the outset, the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, were notified by the Government in December last year.

The Surrogacy (Regulation) Act bans commercial surrogacy and recognises only altruistic surrogacy.

Altruistic surrogacy is where there is no remuneration paid to the surrogate, apart from the expenses that might be prescribed or incurred due to insurance coverage or medical expenditure.

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The instant petition has been filed by Advocate Aditya Samaddar, on behalf of two individuals- Karan Balraj Mehta, a single man, who is desirous of being a father through surrogacy and Dr Pankhuri Chandra, a married woman, who already has a child and is desirous of expanding her family through the means of surrogacy.

Claiming that reproductive choices are a part of individual’s alienable right to life and personal liberty, the plea sought declaration of Sections 2(e), 14(2), 21, 27(3) and 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 and Sections 2(h), 2(s), 2(r), 2(zd),2(zg), 4(ii)(a), 4(ii)(b) and 4(iii), 4(II)(C),8 and Section 38(1)(a) of the Surrogacy (Regulation) Act, 2021 as ultra vires of Articles 14 and 21 of the Constitution.

As per the petition, “The ban on commercial surrogacy, seemingly enacted to protect impoverished women, de-nudes such women from their right over their bodies and denies them the opportunity to exercise agency over their divine right of giving birth.

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“The right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away. In the simplest of terms, the right to commission surrogacy, to found a family, to procreate is a personal decision, which cannot and should not have government intrusion in a democratic society”

-it added.

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