Latest news with #SurrogacyAct
Indian Express
4 days ago
- Health
- Indian Express
After 6 years, intervention by 2 ministries and Delhi HC, Australian child born in India through surrogacy gets exit visa nod
It took six years and multiple back-and-forths between two key Union ministries and the Delhi High Court to ensure an exit visa for a six-year-old child born through surrogacy to Indian-origin Australian citizens in 2019, before the Surrogacy Act came into force in 2022. In the absence of clarity among the two ministries – Ministry of Health and Family Welfare, the Ministry of Home Affairs (MHA) – and after several 'procedural hurdles', the MHA on May 21 directed its Bureau of Immigration to issue an exit visa to the child, subject to payment of late fees for overstay beyond 90 days. The MHA then informed the high court of its decision, recorded in an order by Justice Sachin Datta on May 26. An exit visa is permission granted to a foreigner to leave India in the absence of a valid visa or entry into a country. In the case of the child, born in India and staying here since, his passport as an Australian citizen had no entry stamp to India, thus requiring an exit visa to leave the country. The MHA's decision came after the child's father, an Australian citizen, moved the Delhi High Court earlier this year seeking directions to issue an exit visa for his child, which he had applied for nearly two years ago on April 28, 2023. He is expected to fly out later this month to Australia with his son, say his lawyers Rakesh Kumar and Puneet Kumar. The child's parents are Australian citizens with Overseas Citizen of India (OCI) registration. Born in 2019 in India, the child obtained Australian citizenship in January 2023 following a court order and after complying with the necessary processes. The child's mother, who suffers from Crohn's disease, had decided to go for a gestational surrogacy in 2019 in compliance with Indian Council of Medical Research (ICMR) Guidelines, 2005, which required the execution of a surrogacy agreement with the surrogate mother and intended parent. This was prior to the Surrogacy Regulation Act, 2021, which only came into effect in January 2022. The baby was born in Indore in June 2019, and while his mother died in 2021 due to COVID-19, by January 2023, the boy's father obtained the child's Australian citizenship along with a Mumbai civil court order granting him permission to take the minor from India to Australia. Days after issuing an Australian passport to the child in April 2023, his father applied for an exit visa on behalf of his son through the e-portal of the Foreigners Regional Registration Office (FRRO). In June 2024, the application was shown as 'completed' on the portal but with directions to 'wait for further instructions.' However, on August 14, 2024, the Ministry of Health and Family Welfare (MoHFW) issued an office memorandum (OM), informing the MHA that as per provisions of the Surrogacy Act 2021 and its Rules 2022, foreign nationals are not eligible to avail surrogacy services in India and, for a couple of Indian origin (OCI cardholders), they have to obtain a certificate of recommendation from the National Board formed under the Act before availing such surrogacy treatment. The office memorandum also sought documents from the father with respect to the surrogacy, by way of clarification. In further bureaucratic back and forth, in November 2024, the MHA sought that the father submit a No-Objection Certificate (NOC) from the MoHFW, and days later, the MoHFW telephonically informed the father that they are not responsible for issuing any such NOC. The petitioners – father and son – argued that the Surrogacy Act and its Rules cannot apply retrospectively as it was not in place when the child was born, and had termed the MoHFW's office memorandum of August 2024, directing them to submit proofs of requisite permissions as per the Act, as 'illegal'. When the case was first taken up by Justice Datta in April, it was argued that with the child obtaining admission in a school in Sydney for academic year 2025, the delay in the grant of visa is disrupting the child's education and prolonged absence from regular classes at school has led to issuance of absentee notice by the school, making him likely to suffer cancellation of his admission. At the time of the court hearing, the Union government was granted time to obtain instructions. On May 26, informing the court, the Union government submitted that 'during the year 2015, since there was no regulation on surrogacy in India, MHA had imposed restriction on grant of visa/exit permit to children born out of surrogacy to foreign nationals (including OCI cardholders).' 'Further, during the year 2021, the Surrogacy (Regulation) Act, 2021 was introduced by the Ministry of Health & Family Welfare and Surrogacy Rules were notified in 2022. The Surrogacy Rules permitted surrogacy only for Indian nationals and OCI cardholder parents. However, in the instant case, surrogacy was commissioned…before commencement of Surrogacy Regulation/law in India in violation of MHA guidelines,' the government told the high court. It added, 'Considering the peculiar circumstances of the case and in the interest of the child, the matter was examined in this Ministry. It has been decided to grant exit permit to the Petitioner No.1 after regularising his overstay period by charging appropriate financial penalty.' Taking the MHA's submission on record, Justice Datta thus directed that following payment of the necessary dues, the exit visa be granted to the child expeditiously, and disposed of the matter.
The Hindu
26-04-2025
- Politics
- The Hindu
SC seeks response from govt. on plea challenging bar on single, divorced men from becoming parents through surrogacy
The Supreme Court has sought the response of the Centre on a petition filed by a 45-year-old divorced and single man claiming his right to be a biological parent through surrogacy. A Bench headed by Justice B.V. Nagarathna issued notice to the Union government on the plea by Bengaluru resident, Maheshwara M.V., who said it was unconstitutional to exclude single, divorced men from availing surrogacy under the Surrogacy (Regulation) Act, 2021, which restricts eligibility solely to legally married couples and widowed or divorced women, thereby violating the fundamental rights of the petitioner under Articles 14 (right to equality) and 21 (right to a dignified life) of the Constitution. Also Read | Why were the surrogacy rules modified? | Explained The petitioner, represented by advocate Mohini Priya, urged the court for a judicial declaration of his right to exercise his constitutionally protected right to reproductive autonomy and become a biological parent through gestational surrogacy using his own gametes and donor eggs, as facilitated under the Surrogacy Act. The plea said the legitimate aspiration of single divorced men to avail surrogacy was unjustly, irrationally and arbitrarily denied solely on the grounds of gender and marital status, despite the very same Act, under Section 2(1)(s), expressly permitting divorced women aged 35-45 to access surrogacy. The petition pointed to the rising divorce rates, especially in urban areas. 'As per the 2011 Census, over 1.36 million men were divorced or separated, a number likely higher today with increasing divorce filings (e.g., 1.7% annual rise reported in urban areas per National Crime Record Bureau data). Studies indicate remarriage is significantly harder for men due to societal stigma, age, and financial burdens post-divorce, making it a formidable task to have biological children through traditional means,' it said. The denial of surrogacy rights to the single divorced men like the petitioner was not based on any scientific, logical, or child welfare considerations. It was a regressive, exclusionary policy rooted in outdated patriarchal norms, he argued. 'The state has no compelling interest in restricting surrogacy based on gender or marital status, making such exclusion unjustifiable, oppressive and unconstitutional,' the petition contended.
Hindustan Times
26-04-2025
- Health
- Hindustan Times
Man challenges exclusion from surrogacy
A 45-year-old divorced dental surgeon from Karnataka has approached the Supreme Court challenging provisions of the Surrogacy (Regulation) Act, 2021 that exclude single men from accessing surrogacy services, a first-of-its-kind petition that contended parenthood was not a privilege conferred upon a particular gender. A bench comprising Justice BV Nagarathna and Justice KV Viswanathan issued notice on the petition and sought response from the Union ministry of health and family welfare. The next hearing date was unscheduled. The petitioner, represented by advocate Mohini Priya, contended that the current law permits divorced women aged 35-45 to access surrogacy while denying the same right to divorced men, creating what he terms an 'arbitrary classification' with no rational basis. The petition argued that if the state recognises reproductive autonomy for single divorced women, the same right must be extended to single divorced men. 'Parenthood is not a privilege conferred upon a particular gender but a fundamental right rooted in the principles of equality, dignity, and autonomy,' the petition states, arguing that the provision violates Articles 14 (equality), 19 (fundamental freedoms), and 21 (life and liberty) of the Constitution. The dental surgeon's petition challenges section 2(1)(s) of the Act, which expressly allows only married couples and single unmarried or divorced women to commission surrogacy. He asserted that these restrictions stem from 'outdated gender stereotypes' that fail to recognise modern family structures. While the Surrogacy Act and the Assisted Reproductive Technology (Regulation) Act, 2021 face existing challenges from IVF specialists, single women, LGBTQ community members, and divorced women regarding gender and age specifications, this marks the first such petition by a divorced man. The petition cites the 2011 Census data showing over 1.36 million divorced or separated men in India—a figure likely higher today—and argues that remarriage presents significant challenges for men due to 'societal stigma, age, and financial burdens post-divorce.' Section 4(iii)(c) of the Act sets upper age limits for commissioning surrogacy at 55 years for men and 50 years for women, while Section 2(1)(s) grants special consideration to widowed and divorced women aged 35-45. The petitioner argues that the absence of an analogous provision for divorced men constitutes discrimination. The petition also references the fundamental right to privacy recognised by the Supreme Court in 2017, arguing that denying single men access to surrogacy 'impinges upon their fundamental right to make reproductive choices.' Additionally, the petitioner links surrogacy rights to paternal responsibilities, including the right to paternity leave under Article 42 of the Constitution, which mandates just working conditions. The petition concludes by noting that several nations including the US, Canada, Israel, and Russia recognise single men's reproductive rights through surrogacy, suggesting India should follow suit in affirming that 'family formation is a matter of individual choice, not restricted by gender or marital status.'
Indian Express
24-04-2025
- Health
- Indian Express
Why Bombay High Court referred surrogacy plea by divorced woman to Supreme Court
The Bombay High Court on Monday (April 21) asked a 38-year-old divorced woman to approach the Supreme Court to address whether a single woman was entitled to have a child through surrogacy. The HC passed this ruling after noting that this larger issue was pending before the Supreme Court, and observed that granting interim relief to her may have wider 'repercussions' and the same may lead to 'commercialisation' of the procedure. What was the case? The petition was filed in 2023 by the then-36-year-old, a divorcee with two biological children in the custody of their father (her ex-husband). The woman contended that she suffered disability to bear the child as she had undergone a 'hysterectomy' in 2012 and her uterus was removed. She got divorced by mutual consent in 2017, with the custody of the children awarded to her ex-husband. She said she has not had access to them since 2017 and 'does not have any mother-child relation' with them. Desiring 'motherhood', the petitioner first consulted her doctor for having a child through assisted reproductive techniques (ART), and was suggested surrogacy. The petitioner said she is capable of using her own eggs for surrogacy, and as a single working woman, she was capable of maintaining herself and had also not remarried. During the pendency of the petition, the concerned Civil Surgeon, District Hospital, on April 11 rejected her application seeking granting certificate of 'medical indication' to undergo consequential procedures required surrogacy. The petitioner said her request was denied as she did not fall under the 'intending woman' category under the Surrogacy Act. On what grounds did the Civil Surgeon reject the application for a certificate for surrogacy? The Civil Surgeon of the District Hospital rejected the plea, citing Section 4(iii)(a) of the Surrogacy (Regulation) Act, 2021. The provision stipulated that an 'intending couple' or 'intending woman' is eligible to avail of surrogacy only if they do not have a surviving child – biological, adopted or born through surrogacy. Section 4 relates to 'regulation of surrogacy and surrogacy procedures.' The Hospital said that as per law, an exception is made only in case the existing child suffers from a life-threatening disease with no permanent cure, or is certified by the medical board or appropriate authority as physically or mentally challenged. It noted that the petitioner has two living and healthy biological children from the dissolved marriage, and that their 'custody status' or her not getting remarried would not create an exception for her to become eligible for surrogacy. The Civil Surgeon further emphasised that the eligibility condition takes into account the presence of the surviving child and not the fertility status. The aggrieved petitioner thus sought the High Court's intervention. What do 'surrogacy,' intending couple' and 'intending women' mean under the law? The High Court noted that as per definition in section 2(zd) of the 2021 Act, 'surrogacy' means 'a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.' Moreover, the 'intending couple,' as per section 2(r) of the Act, means 'a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.' Section 2(s) of the law provided that an 'intending woman' means an Indian woman who is a widow or divorcee between the ages of 35 and 45 years and who intends to avail surrogacy. What did the Bombay HC observe? A bench of Justices Girish S Kulkarni and Advait M Sethna prima facie opined that section 4 of the 2021 Act was required to be examined based on the meanings attributed to the three terms. The Court said that the 'larger issue' was whether 'surrogacy' as defined in the law would take in its ambit 'intending women' as contended by the petitioner, while the said term only refers to 'intending couple.' Justice Kulkarni orally apprehended 'commercialisation of surrogacy,' and questioned what happens if in future an unmarried couple seeks to go for surrogacy but later separates and if the legislation intended the same. The judge asked whether such parenting would be permissible and who would be the father of the child. The bench said the present case may be 'genuine', but granting interim relief would have 'repercussions'. There was an 'implicit' issue of rights of the surrogate child in case of a single woman, and the consideration could not be restricted only to the rights of the woman. The High Court referred to an order passed by the Supreme Court bench of Justices B V Nagarathna and Ujjal Bhuyan on December 5, 2023. It noted SC is seized of the proceedings on larger issues involved in regard to the rights of unmarried and/or single women to avail childbearing by surrogacy. The HC adjourned the plea sine die (indefinitely) and asked the petitioner to either approach the SC in the pending proceedings if she wished to seek an opinion or 'appropriate view' of the SC on the 'larger issues,' or wait till the adjudication of the proceedings before the SC. The HC allowed the petitioner to apply again after the SC decision.
Time of India
21-04-2025
- Health
- Time of India
Divorced woman seeking surrogacy referred to SC
Mumbai: Bombay high court on Monday directed that a 36-year-old divorced mother, who is medically unable to bear a child anymore, may approach Supreme Court where a similar issue of single women seeking permission for surrogacy is pending. The high court said the issue raised by the woman, of enabling her as a single woman to opt for surrogacy, raised larger issues when the law specifically made no mention of such a provision. Allowing her plea to go in for surrogacy, just as an 'intending couple' may, could lead to unwanted repercussions which the law intended to prevent—commercialisation of the process, the high court remarked orally. The woman's counsel, Tejesh Dande, arguing before a division bench of Justices Girish Kulkarni and Advait Sethna, said since her uterus was removed, she can no longer bear a baby, and her two children from a previous marriage are in their father's custody. Dande said she may be permitted to take the surrogacy route to motherhood again, since she didn't intend to marry again. The high court, hearing the matter in the morning, said the interest of a child, once born through surrogacy, also has to be considered, not only that of the woman. "There are a child's rights too. You cannot think only of your rights as a woman,'' Justice Kulkarni orally remarked during the hearing. Dande said her plea was rejected as she didn't fall under the 'intending woman' category under the Surrogacy Act. The Act allows a widow or divorcee to opt for surrogacy if she does not have any surviving child or if such a child has a life-threatening condition. Hers was a special condition, hence he sought the high court's intervention. In the morning session, the high court asked Dande and the Centre's lawyer, Y R Mishra, to inform what similar cases are pending before Supreme Court on the issue, in the post-lunch session. Dande cited two cases pending on the single woman issue before Supreme Court, and the high court adjourned the matter sine die and said she could intervene in the matter before Supreme Court. Supreme Court has petitions seeking clarification on definition of "intending woman" to know if a single unmarried woman is covered. The bench said, "We can't read 'intending couple' who are allowed surrogacy under certain conditions, to mean 'intending woman'. Reading something into the section is impermissible unless you can show what the legislation intended." Dande said her plea was rejected since she didn't meet the "intending woman" definition under Surrogacy Act. A woman is ineligible for surrogacy if she has a living child from a previous marriage, the Act says.
