Centre informs SC live-in partners, same-sex couples cannot be allowed to avail services under surrogacy law

The Centre informed the Supreme Court on Tuesday that live-in partners and same-sex couples are not eligible for surrogacy services under the law. The Centre, which has filed an additional affidavit in the matter, has informed the Supreme Court that in its meeting on January 19, expert members of the National Board agreed 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.

According to the Centre’s additional affidavit, it is also pertinent to note that the single parent requires a donor for oocytes and sperm from a third party, which may lead to legal complications and custody issues later on.

Furthermore, the live-in partners are not legally bound, and the safety of the child born through surrogacy is in doubt. The Centre stated in its additional affidavit that the Parliamentary Committee considered the issue of including live-in couples and same-sex couples within the ambit of the Assisted Reproductive Technology (ART) Act, 2021 in its 129 Report and was of the opinion that while relations between live-in couples and same-sex couples have been decriminalised by the Court, they have not been legalised.

The Court has decriminalised same-sex and live-in partners, but no special provisions or rights have been granted to same-sex/live-in couples, according to the Centre’s submission to the Supreme Court.

The Centre informed the Supreme Court that the Parliamentary Committee considered the inclusion of live-in couples and same-sex couples within the ambit of the Surrogacy Act in its 102nd Report and concluded that including these sections of society would open the door to misuse of such facilities and make it difficult to ensure a better future for the child born through surrogacy.

The response came in response to various petitions challenging the legality of the Surrogacy Act, 2021 and the Assisted Reproductive Technology Act, 2021. Arun Muthuvel filed one of the petitions through advocate-on-record Mohini Priya.

One petition was filed by 200 medical practitioners who claimed that they had challenged several restrictive and unscientific provisions of the ART Act, 2021 and raised concerns about the lack of provision for monetary compensation to oocyte donors in IVF, as well as other unscientific restrictions and the number of donations an oocyte donor can make, which is not only unscientific but also a violation of the oocyte donor’s right to donate, which is part of her remuneration.

These petitioners are represented by advocate Mohini Priya, who previously argued that the Act completely excludes certain categories of people, such as single women, single men, same-sex couples, and live-in couples, and that the Court should consider constitutional issues, to which the Court agreed.

Apart from that, the petitioners have challenged the provision under which medical practitioners have been brought under the purview of the IPC and offences have been made cognizable, which is having a chilling effect on IVF practitioners across the country, discouraging them from performing their professional duties due to the fear of prosecution.

The Assisted Reproductive Technology (Regulation) Bill, 2021 seeks to regulate Assisted Reproductive Technology services in the country.

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