In a recent landmark judgement, the Bombay High Court ruled in the case of XYZ & ABC v. Union of India that reproductive health falls under the purview of personal liberty, as per Article 21 of the Constitution of India, 1950.
The petitioners, a married couple since 29th April 2013, were unable to conceive due to severe medical complications faced by the wife. Over 12 years, from 2011 to 2023, she underwent multiple surgeries. The couple sought to become parents through surrogacy, as per the Surrogacy (Regulation) Act, 2021, and the rules framed under it.
However, the Central Government’s amendment to Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, which prohibits donor gametes, became a roadblock for the couple. They argued that such a condition in the rules is illegal as it contradicts the provisions of the Surrogacy Act. Consequently, they filed a petition before the Bombay High Court, which was later accepted by the court.
Justices GS Kulkarni and Firdosh Pooniwala, in their observation, stated that denying the petitioners’ plea would undeniably prejudice their legal rights to parenthood through surrogacy. They further asserted that reproductive health is an aspect of personal liberty under Article 21.
Article 21, which ensures the right to life and personal liberty, states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. This fundamental right is available to all persons, citizens and foreigners alike, and is described by the Supreme Court of India as the Heart of Fundamental Rights.
In the case of Francis Coralie Mullin v. The Administrator (1981), Justice P. Bhagwati stated that Article 21 embodies a constitutional value of supreme importance in a democratic society. In Kharak Singh v. State of Uttar Pradesh (1963), the Supreme Court held that the term ‘life’ implies more than mere animal existence.
The Surrogacy (Regulation) Act, 2021, which came into force on 25th January 2021, allows a woman who is a widow or a divorcee between the ages of 35 to 45 years or a legally married couple to avail of surrogacy if they have a medical condition necessitating this option. It bans commercial surrogacy, punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs, and permits only altruistic surrogacy where no money exchanges hands and the surrogate mother is genetically related to those seeking a child.
The Surrogacy (Regulation) Rules, 2022, provide for the form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic. This landmark judgement has set a precedent in the legal landscape of reproductive rights in India.
