The Madras High Court, while noting that the object of a traditional marriage was procreation, has observed that modern science has come to the rescue of couples who were unable to beget children due to biological reasons.
The Single-Judge Bench of Justice G.R. Swaminathan noted that clinics offering services such as assisted reproductive technology were colloquially called IVF centres.
It was a fact that the mushrooming of such centres and prevalence of unethical practices by a section of professionals led the Parliament to enact the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021.
While disposing of a petition filed by a couple intending to have a child through surrogacy, Justice Swaminathan noted that these Acts mandated a series of procedures to be followed before the couple desiring a surrogate mother to birth their child may be allowed to do so.
The High Court noted that the couple would have to fulfill the age and other criteria that have been laid down to have a child via surrogacy.
Commercial surrogacy has been banned. Jonathan Swift remarked long ago, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”
Celebrity couples particularly the super celebrity ones will sneak through the surrogacy laws and its cumbersome procedures. While the constitutionality of the Act is pending consideration before the Supreme Court, the Court noted that even those who are eligible under the Act are not able to have their treatment procedures done because the concerned authorities are unaware of the procedures to be followed.
As per the Act, the Central Government and the State Governments should have respectively formed the National Surrogacy Board and State Surrogacy Boards within 90 days of passing the Acts to regulate these procedures.
The Court held that there was no clarity as to whether such a Board was functional in Tamil Nadu.
The Health and Family Welfare department of Tamil Nadu government issued a Government Order (GO) dated September 19, 2022 appointing Joint Directors (Health Services) in the concerned Districts (except Chennai) as the District Appropriate Authority to implement and enforce the provisions of the aforesaid Acts.
For Chennai, the Joint Director (Acts) has been designated as the appropriate authority in Chennai District.
What was more important is the formation of the District Medical Board in each district. While the appropriate authority would issue certificate of essentiality/eligibility, the District Board has to provide a certificate of medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy. Explanation to Section 4(iii)(a)(i) of the Surrogacy Act, 2021 states that the expression “district medical board” means a medical board under the chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the District and comprising of at least two other specialists, namely, the Chief Gynacologist or obstetrician and Chief pediatrician of the District. Such District Boards do not appear to have been constituted.”
It is noted by the High Court that the Act specifies that the intending couple should be within the age limit of 23-50 years (female) and 26-55 (male) on the day of certification. This means that couples who have already been struggling to have a child for many years and who have to painfully accept that their only way to have a child may be via surrogacy now also have the added burden of getting these procedures done before they run out of time to have a baby. So, the procedure to enable them to undergo surrogacy must be fast tracked. Otherwise, the right given by the statute will be frustrated by bureaucratic delay and the intending couple may never be able to have their own biological child.
The Central Government has issued notification dated 06.01.2023 containing instructions regarding filing application for getting certificates of medical indication and essentiality, parentage order before approaching clinic for surrogacy services.
The High Court therefore directed the State of Tamil Nadu to form District Medical Boards in all districts immediately.
The members of the District Medical Board need not necessarily be from Medical Colleges as the Act does not contain such a stipulation.
Information about the District Medical Boards should be made available at every Medical College Hospital office. The government is obliged to ensure that the appropriate authorities and the members of the District Medical Board are well versed in the norms and procedures laid down in the aforesaid Acts.
They should be sensitized so that applications are disposed of expeditiously. Since the Act requires that the intending couple and the surrogate to apply to the Magistrate Court for order concerning the parentage and custody of the child to be born through surrogacy, the State Judicial Academy should conduct programs so that the judicial officers are fully acquainted with the statutory provisions”, the Court further directed.