The Government of India has informed the Supreme Court that live-in partners and same-sex couples cannot be allowed to avail services under the surrogacy law. The Government of India, which has filed an additional affidavit in the matter has apprised the Supreme Court that expert members of the National Board in its meeting dated January 19 were of the opinion that the definition of “couple” defined under the Act(s) is correct and that same-sex couples cannot be allowed to avail services under the said Act.
The Government of India, in its additional affidavit, stated it is also apposite to note that the single parent needs a donor for oocytes and sperm from a third party which may lead to legal complications and custody issues at a later stage. Further, the live-in partners are not bound by law and the safety of the child born through surrogacy will be questionable.
The Government of India, in its additional affidavit, stated that the Parliamentary Committee in its 129 Report considered the issue with respect to the inclusion of live-in couples and same-sex couples within the ambit of the Assisted Reproductive Technology (ART) Act, 2021 and was of the view that even though relations between live-in couples and same-sex couples have been decriminalized by the Court, however, they have not been legalized. The Court has decriminalized same-sex relations and live-in relations however neither any special provisions have been introduced with respect to same-sex/live-in couples nor have they been granted any additional rights, Government of India informed the Supreme Court.
The Government of India further said that the Parliamentary Committee in its 102nd Report also considered the issue with respect to the inclusion of live-in couples and same-sex couples within the ambit of the Surrogacy Act and was of the view that inclusion of these sections of society would open the scope of misuse of such facilities and it would be difficult to ensure better future of the child born through surrogacy.
The Government of India was responding to various pleas challenging the vires of the Surrogacy Act, 2021 and the Assisted Reproductive Technology Act, 2021. One of the petitioner was filed by 200 medical practitioners who claimed that they have challenged several restrictive and unscientific provisions of the ART Act, 2021 and they have raised concerns about the lack of provision for monetary compensation to oocyte donors in IVF along with other unscientific restrictions and the number of donations an oocyte donor can make which is not just unscientific but a violation of oocyte donors right to donate which is part of her reproductive autonomy under Article 21 of the Constitution.
These petitioners are represented by advocate Mohini Priya, who has earlier argued that certain categories of persons like single women, single men, same-sex couples and live-in couples have been completely excluded by the Act and there are constitutional issues to be considered by the Court, to which the Court agreed.
Apart from this, the petitioners have also challenged the provision wherein medical practitioners have been brought within the purview of the IPC and offences have been made cognizable, which is having a chilling effect on IVF practitioners across the country dissuading them from performing their professional duties due to the fear of prosecution.
The Assisted Reproductive Technology (Regulation) Bill, 2021 seeks to provide for the regulation of Assisted Reproductive Technology services in the country.
[with inputs from ANI]