The bar imposed by the Centre on foreign single parents and unmarried couples to have a surrogate child in the country has come under judicial scrutiny for the first time since it was introduced in July last year.
The Punjab and Haryana High Court, on a petition by a Sudanese national, has issued notice to the Union Home Ministry over its July 9, 2012 guidelines that excluded foreigners who are single parents or unmarried to be entitled for a medical visa for purposes of surrogacy. The guideline restricted this facility only to couples married for at least two years. The court will hear the matter next on September 9.
After India became the hub of surrogacy, the guideline on medical visa was enacted by the Centre, though very late in the day. In its absence, the Supreme Court was left to decide the fate of the surrogate children who came under the threat of becoming stateless citizens. This saw the apex court actively pursue the cause of Japanese baby Manji Yamada in 2008, allowing her to travel to Japan with her grandmother. In this case, it was a divorced parent who commissioned the surrogacy. And in the years that followed two gay couples from Israel and Germany too got exit visas to leave India with their surrogate children.
While these judgments favour the case of Sudanese national Shihabeldin, his lawyers Anil Malhotra and Gaurav Mohunta have challenged the constitutional validity of the said rules, questioning the criteria to specifically exclude gay couples and single parents to fulfill their right to reproductive autonomy, part of their right to privacy, similar to married foreign couples. The petitioner had applied for permission to the Foreign Registration Officer on June 29 this year, which was rejected on July 1.
Interestingly, the MHA regulations run contrary to the Guidelines issued by the Indian Council of Medical Research on Assisted Reproductive Technology (ART). It allows single women to have a surrogate child and even confers the child with all legal rights on the single parent, man or woman.
With the HC Bench of Chief Justice Sanjay Kishan Kaul and Justice AG Masih setting out to examine the issue, the Centre would be expected to share the criteria that weighed with it to draw a distinction between married and single couples. Petitioner’s counsel Anil Malhotra believes that the question of law raised in the petition would have far-reaching implications as overseas citizens of India and persons of Indian origin would also face this discrimination as compared to their counterparts here.