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Tuesday, March 3, 2015

Plea in SC to ban commercial surrogacy

New Delhi, Feb. 25: The Supreme Court today asked a host of central ministries to respond to a plea that said the country had become a "baby factory" and sought judicial intervention to ban commercial surrogacy as it amounted to exploiting Indian womanhood.

The court also asked the commerce ministry to explain under what provisions had it decided to permit import of human embryo, another point the petitioner raised in her PIL.

There is no law in India now that governs surrogacy, which involves carrying a pregnancy for the intended parents.

When the arrangement is for a fee, it becomes a "commercial surrogacy agreement", which the petitioner says should be banned.

"Yes, even some countries like South Korea have banned it. We need to look into the larger issues involved in the petition," Justices Ranjan Gogoi and N.V. Ramana said.

The bench asked the ministries of home, law, health, commerce and external affairs to respond within four weeks. It also sought replies from the Medical Council of India and the Indian Council of Medical Research.

In her petition, advocate Jayashree Wad said the country had virtually become a "baby factory" as a large number of foreign couples have been coming to India in search of surrogate mothers.

Senior counsel Shekhar Naphade and advocate Tamali Wad, who appeared for the petitioner, said this has become a business involving doctors, hospitals and other institutions.

"The Indian ladies in question usually come from poor or lower middle class families. These ladies, who act as surrogate mothers, render their services for a fee. Thus, in this whole process of surrogate motherhood, a commercial element is introduced.... This is clearly exploitation of Indian womanhood for commercial gain," Tamali told the court.

The advocate contended that this amounted to a "violation" of Article 21 (right to life and liberty), possibly meaning that every pregnancy had an element of risk.

"Neither Parliament nor any state legislature has prohibited this practice," the lawyer added, requesting the court's urgent intervention and an "authoritative pronouncement" that commercial surrogacy was "contrary" to public policy, "unethical" and, therefore, "ought not to be permitted in this country".

Naphade said to "protect the rights of womanhood", the Centre was "under an obligation" to prohibit the entry of foreign couples or individuals who visit the country for hiring surrogate mothers.

The senior counsel also requested the court to "set aside" a December 2013 notification by the commerce ministry that purportedly allowed import of human embryo under the Foreign Trade (Development and Regulation) Act, 1992, and the Foreign Trade Policy, 2009-2014.

Naphade said foreign trade and customs laws dealt with import of goods and services but human embryos were neither goods nor could be classified as services. So the notification went against the provisions of the trade act and policy. "There is no enactment on the statute book which permits the import of human embryo," the counsel added.

The petition also dealt with what it called the growth of the embryo in the womb. It said foreign couples "import" - directly or through IVF centres - embryo, "which is a human being in miniature form" in the womb of the Indian mother. "This amounts to trafficking in human beings."

It spoke of the possibility of "physical or mental trauma" of surrogacy on those who carry the pregnancy. "In all probability, the Indian society at large would look down upon such women. After all, giving birth to a child even in a nor.


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