The Central government has informed the Supreme Court that surrogacy law says a surrogate mother may not be genetically related to the child born through the process.
A bench headed by Justice Ajay Rastogi is hearing a clutch of petitions, including one challenging certain provisions of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.
The petition has contended these provisions directly infringe upon the right to privacy and are against the reproductive rights of women and also a contention has been raised, in one of the petitions, that both Acts fall short in fully addressing the essential goal of regulating surrogacy and other assisted reproductive techniques.
It has been argued that the Surrogacy Act imposes a blanket ban on commercial surrogacy, which is neither desirable nor may be effective.
The Central government said 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 government clarified that a child to be born through surrogacy to the intending couple should be formed of gametes of the intending couple themselves: sperms from the father and oocytes from the mother.
The government said through a notification issued in May last year, it had formed the National Assisted Reproductive Technology and Surrogacy Board under section 17 of the Surrogacy Act and section 3 of the ART Act.
The Central government submitted before the apex court that the child to be born through surrogacy must be genetically related to the intending couple or intending woman (widow or divorcee).
It further added that a provision of the Surrogacy Act prescribes that no woman shall act as a surrogate mother by providing her own gametes.
Citing Section 25 of the Surrogacy Act, the government said the board has the power to advise the Centre on policy matters relating to assisted reproductive technology and surrogacy. And, also for supervising the functioning of various bodies constituted under the two statutes, including the state boards, it added.
The government said the national board is a common body between the Surrogacy Act and the ART Act. It further added that boards have been constituted in all states and Union Territories except Bihar, Uttar Pradesh, and Gujarat.