BEFORE THE SUPREME COURT OF INCA

Writ Petition filed under Article

32 of the Constitution of Inca

W.P No.: ---/2016

4TH NHRC-LC-I NATIONAL MOOT COURT COMPETITION, 2016

MARIA AND ORS Petitioners

vs.

UNION OF INCA AND ORS. Respondents

MEMORIAL FILED ON BEHALF OF THE PETITIONERS

Most Respectfully Submitted to the Honble

Judges of the Supreme Court of Inca

COUNSEL APPEARING ON BEHALF OF PETITIONERS

-MEMORIAL ON BEHALF OF THE PETITIONERS-

TABLE OF CONTENTS- -Page i of x

TABLE OF CONTENTS

INDEX OF A U T H O R I T I E S ....................................................................................................... ii
STATEMENT OF J U R I S D I C T I O N ......................................................................................... vi
STATEMENT OF F A C T S ........................................................................................................ vii
STATEMENT OF I S S U E S ...................................................................................................... viii
SUMMARY OF A R G U M E N T S ................................................................................................. ix
W R I T T E N S U B M I S S I O N S ........................................................................................................ 1
1. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION? ................................................... 1
1.1. THAT RETROSPECTIVE APPLICATION OF THE ACT IS IN VIOLATION OF ARTICLE 14 OF
THE CONSTITUTION .................................................................................................................... 2

1.2. THAT THE EXCLUSION OF FOREIGN NATIONALS FROM AVAILING THE BENEFIT OF
SURROGACY IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION ..................................... 2

1.3. THAT THE EXCLUSION OF SINGLE AND UNMARRIED WOMEN FROM BEING
COMMISSIONING PARENTS AND OFFERING SERVICES OF SURROGACY IS IN VIOLATION OF
ARTICLE 14 OF THE CONSTITUTION ........................................................................................... 5
2. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 19 OF THE CONSTITUTION? ................................................... 7
2.1. THAT THE DOCTORS, CLINICS AND SINGLE WOMEN HAVE A RIGHT TO PRACTICE
SURROGACY AS A TRADE OR PROFESSION UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION . 8

2.2. THAT THE RESTRICTIONS IMPOSED BY THE ACT ARE NOT SAVED BY ARTICLE 19(6) ... 9
3. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 21OF THE CONSTITUTION? ................................................. 10
3.1. THAT THE ACT CURTAILS THE RIGHT TO PRIVACY GUARANTEED BY ARTICLE 21 OF
THE CONSTITUTION. ................................................................................................................. 11

3.2. THAT THE ACT IS IN VIOLATION OF THE RIGHT TO LIVELIHOOD UNDER ARTICLE 21.13
3.3. THAT THE ACT VIOLATES THE RIGHT TO HEALTH UNDER ARTICLE 21. ..................... 14
P R A Y E R ........................................................................................................................................ x

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INDEX OF AUTHORITIES - -Page ii of x

INDEX OF AUTHORITIES

Cases
ABC v. State (NCT of Delhi), AIR 2015 SC 2569 .........................................................................................................6
Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., [1990] Supp 3 SCR
583. ............................................................................................................................................................................3
Anuj Garg and Ors.v. Hotel Association of India and Ors., (2008) 3 SCC 1 .............................................................. 11
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. ........................................................................................ 14
B.K. Parthasarathi v. State of AP, 2000 (1) ALD 199 ................................................................................................ 12
Baby Manji Yamada v. Union of India and Anr., (2008) 13 SCC 518 ..........................................................................9
C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., AIR 1992 SC 573 .................................................... 16
Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 ...........................................2
Gobind v. State of Madhya Pradesh and Anr., 1975 CriLJ 1111 ................................................................................ 12
Holiness Kesavananda Bharati Sripadagalvaru and Ors.v. State of Kerala and Anr.,(1973) 4 SCC 225 ....................8
I.C. Golaknath v. State of Punjab, [1967] 2 SCR 762 ................................................................................................. 14
In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak, 2010 (1) Bom CR 434 ...6
In re: The Special Courts Bill, 1978 (1979) 1 SCC 380 ................................................................................................1
Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309 .........................................................................................................7
Inspector (Mahila) Ravina v. UOI and Ors., W.P.(C) 4525/2014.................................................................................8
Israel Military Industries Ltd. v. Union Of India & Anr. ..............................................................................................3
Jan Balaz v. Anand Municipality, AIR 2010 Guj 21. ....................................................................................................3
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295. ..................................................................................... 13
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469 .........................................................................................5
M.J. Sivani and Ors. v. State of Karnataka and Ors.(1995) 6 SCC 289 .......................................................................3
M/S Sethi Auto Service Station v. Delhi Development Authority & Ors. AIR 2009 SC 904 .........................................2
Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509..................................................2
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ................................................................................................ 14
Manushi Sangathan, Delhi v. Government of Delhi and Ors., 168 (2010) DLT 168 ...................................................9
Minerva Mills Ltd. and Ors.v. Union of India and Ors., (1980) 3 SCC 625 .................................................................8
Mithilesh Kumari v. Prem Behari Khare, (1982) 2 SCC 95..........................................................................................6
National Buildings Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779. ..................................2
Navjyoti Coop. Group Housing Society v. Union of India (1992) 4 SCC 477 ..............................................................2
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 ............................................................................ 14
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426 .................................................. 16
Pathumma v. State of Kerala, [1978] 2 SCR 537 ....................................................................................................... 14
Pt. Parmanand Katara v. Union of India (1989) 4 SCC 286. ..................................................................................... 15
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 ............................................................................................ 12

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INDEX OF AUTHORITIES - -Page iii of x

Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267 .................................................................................1

Rajasthan Pradesh V.S. Sardarshahar and Anr. v. Union of India (UOI) and Ors., AIR 2010 SC 2221. ................. 10
Rama Pandey v. Union of India and Ors., 221 (2015) DLT 756 ..................................................................................6
S. Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137. ................................................................ 13
S.P.S. Balasubramanyam v. Suruttayan Alias Andali Padayachi and Ors., AIR 1992 SC 756 ....................................7
Saghir Ahmed v. State of U.P, (1955) 1 SCR 707(717).................................................................................................9
Samira Kohli v. Dr. Prabha Manchanda and Anr., AIR 2008 SC 1385 ..................................................................... 16
Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974. ................................................................................................. 13
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., AIR 2006 SC 212...............................................3
State of Maharashtra and Ors.v. Indian Hotel and Restaurants Association and Ors., AIR 2013 SC 2582 .............. 11
Suchita Srivastava and Anr. v. Chandigarh Administration, AIR 2010 SC 235. ........................................................ 12
Svetlana Kazankina and Ors .v. Union of India and Ors,. 225 (2015) DLT 613 ..........................................................7
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356. ............................................................................................. 12
Uday Gupta v. Aysha and Anr,. 2014 (7) SCJ 209 ........................................................................................................6
Union of India &Ors. v. Hindustan Development Corporation & Ors. AIR 1994 SC 988 ...........................................2
Union of India and Anr. v. Jan Balaz and Ors., 2015 (4) RCR (Civil) 881. ........................................................... 9, 10
Union of India and Anr. v. Tulsiram Patel and Ors., AIR 1985 SC 1416.....................................................................4
Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 SC 2178 .......................................... 14
Foreign Judgments
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 ............................................................................6
Canterbury v. Spence, 1972 [464] Federal Reporter 2d. 772. ..................................................................................... 16
Council of Civil Service Unions & Ors. v. Minister for the Civil Service, [1983] UKHL 6..........................................2
Durban in MIA v. State Information Technology Agency (Pty) Ltd., (D312/2012) [2015] ZALCD20. ........................6
Eisenstadt v. Baird, 405 U.S. 38 ................................................................................................................................. 12
Griswold v. Connecticut, 381 U.S. 479, 484 (1965).................................................................................................... 12
K (Minors) (Foreign Surrogacy), EQHC (Family Division), Case No: FD09P02848. .................................................3
Labassee v. France, no.65941/11, ECHR .....................................................................................................................3
Lifchez v. Hartigan, 735 F. Supp. 1361 (1990) ........................................................................................................... 13
Mennesson v. France, no.65192/11, ECHR (2014).......................................................................................................3
Meyer v. Nebraska, (1923) 67 L Ed 1042 ................................................................................................................... 13
Paradiso and Campanelli v. Italy, no.25358/12, European Council Human Rights .....................................................3
Planned Parenthood of Central Missouri. v. Danforth , 428 U.S. 52 (1976 .................................................................8
R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions, [2003] 2 AC
295 .............................................................................................................................................................................7
Roe v. Wade, 410 U.S. 113 (1973) .............................................................................................................................. 13
Skinner v. Oklahoma, (1942) 316 US 535. .................................................................................................................. 12

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INDEX OF AUTHORITIES - -Page iv of x

Books
1. GITA ARAVAMUDHAN, BABY MAKERS: THE STORY OF INDIAN SURROGACY (2014)
2. LEGAL AND ETHICAL ISSUES IN HUMAN REPRODUCTION,THE INTERNATIONAL LIBRARY OF
MEDICINE, ETHICS AND LAW 24 (Bonnie Steinbock ed., 1st Edn., 2002)
3. E. ANDERSON, VALUE IN ETHICS AND ECONOMICS (1995)
Journals
1. John A. Robertson, The Right To Procreate and In Utero Fetal Therapy, 3 JOURNAL OF
LEGAL MEDICINE 44 (1982).
2. Anil Malhotra and Ranjit Malhotra, All Aboard For the Fertility Express, 38
COMMONWEALTH LAW BULLETIN 1 (2012).
3. Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Womens Right to
Health in India: Issues and Perspective, 57 INDIAN JOURNAL OF PUBLIC HEALTH 2 (2013).
Guidelines and Reports
1. Notification No. V.25011/119/2015-HR, Ministry of Health and Family Welfare,
Government of India (4th November 2015).
2. Citizenship, Parentage, Guardianship And Travel Document Issues In Relation To
Children Born As A Result Of Surrogacy Arrangements Entered Into Outside The State,
The Minister for Justice, Equality and Defence (February 21, 2012).
3. Illegal trade in human organs, Letter by the Chairperson of National Human Rights
Commission to the Prime Minister, January 29, 2004.
4. Guidelines Governing Adoption of Children, Ministry of Women and Child
Development, New Delhi, July 17, 2015.
5. Report of the International Conference on Population and Development, Principle 1,
A/CONF.171/13 (18 October 1994).
6. Report of the Law Commission of India (2009).
7. National Guidelines for Accreditation, Supervision, Regulation of ART Clinics in India,
Indian Council of Medical Research (2005).
International instruments
1. UN General Assembly, Universal Declaration of Human Rights, Art. 16(1), 10
December 1948, 217 A (III)

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INDEX OF AUTHORITIES - -Page v of x

2. UN General Assembly, International Covenant on Civil and Political Rights, Art. 23(2),
16 December 1966, United Nations Treaty Series, vol. 999, p. 171
3. Committee on Economic Social and Cultural Rights, General Comment No. 14 (2000);
Paragraph 41, UN General Assembly, International Covenant on Economic, Social and
Cultural Rights, 16 December 1966, United Nations Treaty Series, vol. 993, p. 3
4. Factsheet No. 31, UN Commission on Human Rights (2003)
5. Principle 24, Yogyakarta Principles - Principles on the Application of International
Human Rights Law in Relation to Sexual Orientation and Gender Identity, International
Commission of Jurists, (2007)
6. Revised Glossary of ART Terminology, International Committee for Monitoring Assisted
Reproductive Technology (ICMART) and the World Health Organization (2009)
7. CEDAW Committee General Recommendation 19, Violence against Women, U.N. Doc.
A/37/48
8. International Conference on Population and Development Programme of Action
Programme of Action 1993
Statutory Enactments and Bills
1. Constitution of India,1950
2. Hindu Minority and Guardianship Act, 1956
3. Juvenile Justice (Amendment) Act, 2006
4. Protection of Women from Domestic Violence Act, 2005
5. Medical Termination of Pregnancy Act, 1971
6. Citizenship Act, 1955
7. Hindu Adoption and Maintenance Act, 1956
8. The Draft Assisted Reproductive Technology (Regulation) Bill, 2014

-MEMORIAL ON BEHALF OF THE PETITIONERS-

STATEMENT OF JURISDICTION- -Page vi of x

STATEMENT OF JURISDICTION

The petitioners have approached the Honble Supreme Court under Article 32 of the Constitution

which reads as under:

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement

of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including

writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (

2 ), Parliament may by law empower any other court to exercise within the local limits of

its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (

2)

(4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution

-MEMORIAL ON BEHALF OF THE PETITIONERS-

STATEMENT OF FACTS- -Page vii of x

STATEMENT OF FACTS

1. Maria was an Incan national until she acquired US citizenship in 2014 after shifting to the
United States of America in 2010 with her husband, John, a resident US citizen.
2. When the couple realized that they could not conceive, they travelled to Inca. In October
2015, the couple entered into talks with a licensed Incan surrogacy clinic, the XYZ ART
Clinic and through the clinic, entered into an agreement with Seema, a 25 year old house
maid and mother, who agreed to act as the surrogate against the settled consideration and on
usual terms and conditions.
3. In November 2015, the 'Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015
was passed. This Act, inter alia, prohibited foreign nations from availing surrogacy services
in Inca and made the provision of such services to non-citizens an offense punishable with a
fine and/or imprisonment apart from cancellation of the offending clinic's license. NRIs and
PIOs were however excluded from this restriction. The Act further denied single or
unmarried women the right to commission surrogacy as well as offer services of surrogacy.
4. Following the passing of the above law, the clinic refused to render services to Maria and
John on grounds of nationality of the couple and uncertainty regarding the eligibility of the
decided surrogate mother. The couple faced a similar response at other Incan clinics as well.
5. Aggrieved, Maria approached the Supreme Court with a writ petition, challenging the
constitutionality of the Act on grounds that it was arbitrary, irrational and against natural law.
6. Following this, four other petitions were filed. Three of them, i.e., The Association of
Medical Practitioners of ART Clinics (AMPAC), The All Inca Mahila Samithi and, The
Single Women (Professional Surrogates) Association also challenging the Act. The
Association of Custodians of Traditional Ethics however filed a petition to request a
complete ban on surrogacy on grounds that it raised health concerns for both the surrogate
woman and the
The Supreme Court of Inca has clubbed all these petitions together giving rise to the instant
case.

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STATEMENT OF ISSUES- -Page viii of x

STATEMENT OF ISSUES

I. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 14 OF THE
CONSTITUTION?

II. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 19 OF THE
CONSTITUTION?

III. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 21OF THE
CONSTITUTION?

-MEMORIAL ON BEHALF OF THE PETITIONERS-

SUMMARY OF ARGUMENTS- -Page ix of x

SUMMARY OF ARGUMENTS

I. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 14 OF THE
CONSTITUTION?
The Petitioners contend that the retrospective application of the Act invokes the doctrine of
legitimate expectation and is arbitrary according to the procedure laid down in Article 14 of the
Constitution. Furthermore, the exclusion of (i) foreign nationals from availing the benefits of
surrogacy (ii) single and unmarried women from offering services of surrogacy (iii) single and
unmarried women from being commissioning parents, the Act does not fulfil the test of
intelligible differentia and rational nexus. Therefore, the Act is in violation of Article 14.
II. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 19 OF THE
CONSTITUTION?
It is submitted that the Act violates Article 19(1)(g) that is conferred upon the doctors and ART
clinics by not permitting them to offer surrogacy services to foreign nationals and charge fees for
facilitating surrogacy agreements. It is contended that the right to livelihood of single and
unmarried surrogate mothers is also violated. Since these restrictions do not fall within the
permissible ambit of reasonable restrictions under Article 19, they are in violation of Article 19.
III. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 21OF THE
CONSTITUTION?
It is submitted that the exclusion of single and unmarried women from commissioning surrogacy
infringes upon their right to reproductive autonomy whereas the exclusion of single and
unmarried women from offering services of surrogacy curtails their right to personal liberty, both
of which are protected by the right to privacy enshrined in Article 21. The Act violates the right
to livelihood that accrues to surrogate mothers and doctors. Additionally, the denial of surrogacy
services to foreign couples, single and unmarried women is in violation of the right to health.

-MEMORIAL ON BEHALF OF THE PETITIONERS-

 WRITTEN SUBMISSIONS- -Page 1 of 16

WRITTEN SUBMISSIONS

1. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS

IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION?

The instant issue has arisen out of the following facts. Maria, an Incan citizen married a foreign
national and subsequently took up US Citizenship in 2014. On a visit to Inca in October 2015,
the couple visited a licensed Incan surrogacy clinic, the XYZ ART Clinic. Through XYZ
they entered into an agreement with Seema, a 25 year old house maid and mother of a four year
old child, who agreed to act as their surrogate. However, in November 2015, Inca passed the
Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015.1 The Act banned the
Assisted Reproductive Technology2 Clinics from providing surrogacy treatment to foreign
nationals.3 It also barred single and unmarried women from commissioning surrogacy as well as
offering services of surrogacy.4 Maria, along with the Association for Medical Practitioners and
Clinics, All Inca Mahila Samiti and the Single Women (Professional Surrogates) Association
have challenged the constitutional validity of the Act before this Honble Court.

It is humbly submitted that the right to equality has been recognized as a part of the basic
structure of the Constitution.5 The framework of Article 14 is such that it permits reasonable
classification of persons. In order to test whether a classification is reasonable, it must be proved
that the classification is based on intelligible differentia with a rational nexus to the object it
seeks to achieve.6 It is submitted that retrospective application of the Act is in violation of
Article 14 of the Constitution in that it denies the petitioner access to the surrogacy treatment
despite the having been enacted at a later date. The Petitioners contend that in the exclusion of (i)
foreign nationals from availing the benefits of surrogacy (ii) single and unmarried women from
offering services of surrogacy (iii) single and unmarried women from being commissioning
parents, the Act is in violation of Article 14 of the Constitution and is therefore ultra vires the
basic structure of the Constitution.
1
Hereinafter, the Act.
2
Hereinafter, ART.
3
Provision 1, the Act.
4
Provision 2, the Act.
5
Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267.
6
In re: The Special Courts Bill, 1978, (1979) 1 SCC 380.

-MEMORIAL ON BEHALF OF THE PETITIONERS-

 WRITTEN SUBMISSIONS- -Page 2 of 16

1.1. THAT RETROSPECTIVE APPLICATION OF THE ACT IS IN VIOLATION OF ARTICLE 14 OF THE

CONSTITUTION
1.1.1. It is humbly submitted that the doctrine of legitimate expectation can be invoked when the
decision of the administrative authority deprives a person of some benefit which he had been
previously permitted to enjoy by the decision maker.7 Such benefit entitles him to legitimately
expect to be permitted to enjoy the same until some rational ground for withdrawing it has been
communicated to him and he has been given an opportunity to comment thereon.8 The failure to
consider and give due weight to such expectations may render state policies as arbitrary and in
violation of Article 14.9This is in consonance with the duty of the State to treat individuals with
full personal consideration and without any abuse of discretion.10
1.1.2. In the instant case, prior to November 2015, there was no law preventing foreign nationals from
availing the services of Incan ART clinics.11 As a result, foreign couples who had travelled to
Inca before the enactment of the Act for the purpose of availing surrogacy services held a
legitimate expectation of the continuation of an amenable surrogacy policy. It is submitted that if
the Act is applied retrospectively, it would be unfair to unsuspecting foreign couples, such as the
petitioner who have initiated the surrogacy process and are left without any remedy. This
invokes the doctrine of legitimate expectation.12 Therefore it is open to judicial review under
Article 14.
1.2. THAT THE EXCLUSION OF FOREIGN NATIONALS FROM AVAILING THE BENEFIT OF SURROGACY
IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION

1.2.1. The right to equality under Article 14 confers equal protection of the laws upon all persons
within the territory of India, irrespective of their origin13 and the right extends to foreign

7
M/s Sethi Auto Service Station v. Delhi Development Authority & Ors., AIR 2009 SC.
8
Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509; Council of Civil Service
Unions & Ors. v. Minister for the Civil Service, [1983] UKHL 6.
9
Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601; Union of India & Ors. v.
Hindustan Development Corporation & Ors., AIR 1994 SC 988.
10
National Buildings Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779.
11
Page 1, Factsheet.
12
Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477; Notification No. V.25011/119/2015-
HR, Ministry of Health and Family Welfare, Government of India (4th November 2015).
13
Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., [1990] Supp 3
SCR 583.

-MEMORIAL ON BEHALF OF THE PETITIONERS-

 WRITTEN SUBMISSIONS- -Page 3 of 16

nationals.14 Therefore any restriction on their right to equality will necessarily need to fulfil the
dual test of intelligible differentia and rational nexus with the intended object. It is submitted
that in order to decide whether a restriction satisfies the above criteria, the Court must look into
the underlying purpose of the restriction and the evils sought to be remedied by the law15 while
examining the adequacy of a less restrictive alternative. 16
1.2.2. Most countries that have statutes governing surrogacy have excluded foreign nationals from
availing of surrogacy services. The immediate reason behind such a ban is the inconsistency in
national policies governing legal recognition of the children born out of surrogacy agreements.17
For instance, in Italy, in a pending case, the non-recognition of the birth certificate of a child
born through international surrogacy led to the separation of the infant from its surrogate
parents.18 Similarly, the European Court of Human Rights19 refused to grant legal recognition to
parent-child relationships that had been legally established through international surrogacy
arrangements.20 In response to the Baby Gammy case which brought up citizenship rows in
Thailand, the Protection of Children Born from Assisted Reproductive Technologies Act, 2015
was enacted which effectively banned foreigners from entering into surrogacy agreements. Such
problems have also been witnessed in India as in the case of Jan Balaz v. Anand Municipality.21
Therefore it may be reasonably deduced that the object behind the exclusion of foreign nationals
from being commissioning parents is the possible issues regarding the citizenship of the children
born pursuant to the agreement.
1.2.3. It is humbly submitted that the classification of foreign nationals under the ambit of the Act22
expressly excludes Non-resident Incans23 and Persons of Incan Origin.24 It must be noted that

14
Israel Military Industries Ltd. v. Union Of India & Anr., WP(C) 2620/2012.
15
M.J. Sivani and Ors. v. State of Karnataka and Ors., (1995) 6 SCC 289.
16
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., AIR 2006 SC 212.
17
K (Minors) (Foreign Surrogacy), EQHC (Family Division), Case No: FD09P02848.
18
Paradiso and Campanelli v. Italy, no.25358/12, European Council Human Rights (2015).
19
Hereinafter, ECHR.
20
Mennesson v. France, no.65192/11, ECHR (2014); Labassee v. France, no.65941/11, ECHR (2014).
21
Jan Balaz v. Anand Municipality, AIR 2010 Guj 21.
22
Provision 1, the Act.
23
Hereinafter, NRI.
24
Hereinafter, PIO.

-MEMORIAL ON BEHALF OF THE PETITIONERS-

 WRITTEN SUBMISSIONS- -Page 4 of 16

unlike NRIs, PIOs do not hold Incan passports. The Draft Assisted Reproductive Technology
(Regulation) Bill, 201425 clearly provides that the surrogate children born to PIOs and OCIs will
not be entitled to Indian citizenship.26 Moreover, the Bill merely confers a limited entitlement of
Oversees Citizen of India status to children born to Oversees Citizens of India as under the
Citizenship Act, 1955.27 Therefore, similar to any foreign couple, the children born out of
surrogacy will be taken back to the country of the commissioning parents which affirms the
possibility of citizenship issues in the case of PIOs as well.
1.2.4. Article 14 forbids hostile classification by law which treats persons similarly circumstanced
differently or treating those not similarly circumstanced in the same way. 28It is submitted that in
the instant case, treating PIOs and NRIs equally while creating a distinction between PIOs and
foreigners amounts to an unreasonable classification because it is not based on any intelligible
differentia. Therefore, the Act is in violation of Article 14.
1.2.5. It is further submitted that there exist alternative methods to tackle citizenship issues that may
instead be employed to achieve the same object. Possible methods have been elucidated in the
ART Bill, 2014. These include a mandatory provision of a letter from either the local embassy of
the Country or from the appropriate Government Authority stating that the child, or children
born through surrogacy, shall be permitted entry in the country as a biological child or children
of the commissioning couple and that the party shall be able to take such a child outside of India
to the country of the partys origin or residence, as the case may be.29The Bill also imposes a
penalty on commissioning parents who fail to take custody of the child without genuine
reasons.30 Similarly, in Ireland, the government issues emergency travel documents to the child
within two days of its arrival within the country in order to ensure best interests of the child
while the adjudication of citizenship is still sub judice.31

25
Hereinafter, ART Bill 2014.
26
Sec. 61(7), ART Bill 2014.
27
Sec. 61(7), ART Bill 2014.
28
Union of India and Anr. v. Tulsiram Patel and Ors., AIR 1985 SC 1416.
29
Section 60(21)(b), ART Bill, 2014.
30
Section 60(21)(c)(i)(d), ART Bill, 2014.
31
Citizenship, Parentage, Guardianship And Travel Document Issues In Relation To Children Born As A Result Of
Surrogacy Arrangements Entered Into Outside The State, The Minister for Justice, Equality and Defence (February
21, 2012).

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1.2.6. The exclusion of foreign couples has also been advocated in light of the increasing threat of
exploitation and trafficking posed to the surrogate mothers. Commercial surrogacy has been
operating on an unregulated basis in India. While efforts have been made to regulate ART clinics
such as the guidelines released by the Indian Council of Medical Research,32 they have not had
the force of law and thereby implementation has been harder to enforce. 33 It is submitted that in
status quo, the risks of exploitation have only been assessed in a pre-regulation framework. A
blanket ban on foreigners from availing of surrogacy will move surrogacy arrangements to the
black markets, and expose the surrogates to a greater risk of exploitation. 34 Hence bringing
foreigners within the ambit of regulation is the lesser of the two evils. This rationale was also
offered in the case of inter-country adoption wherein the Government was concerned with the
exploitation of children. The Supreme Court, while holding that it must be allowed, laid down
detailed principles and norms to be followed for the adoption of children by foreigners.35It is
submitted that the blanket exclusion of foreigners does not serve any rational purpose and
therefore the Act is in violation of Article 14.
1.3. THAT THE EXCLUSION OF SINGLE AND UNMARRIED WOMEN FROM BEING COMMISSIONING

PARENTS AND OFFERING SERVICES OF SURROGACY IS IN VIOLATION OF ARTICLE 14 OF THE

CONSTITUTION
1.3.1. Single and unmarried women as commissioning parents:
A. Indian law allows for women to adopt children irrespective of marital status. Section 8 of the
Hindu Adoption and Maintenance Act, 1956 allows for unmarried Hindu women to adopt a son
or a daughter. Similarly, under the Juvenile Justice (Amendment) Act, 2006 the ability of a
woman to adopt has been recognized irrespective of her marital status. 36 Therefore, the
competence of single women to be a parent is not in dispute.37 Courts have recognized that the
term maternity extends to females who employ services of another female to procreate with or

32
National Guidelines for Accreditation, Supervision, Regulation of ART Clinics in India, Indian Council of
Medical Research (2005).
33
GITA ARAVAMUDHAN, BABY MAKERS: THE STORY OF INDIAN SURROGACY (2014); Anil Malhotra and Ranjit
Malhotra, All Aboard For the Fertility Express, 38 COMMONWEALTH LAW BULLETIN 1 (2012).
34
E. Anderson, Is Womens Labour a Commodity?, VALUE IN ETHICS AND ECONOMICS (1995).
35
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.
36
Section 41(6), Juvenile Justice (Amendment) Act, 2006; In Re: Adoption of Payal @ Sharinee Vinay Pathak and
his wife Sonika Sahay @ Pathak, 2010 (1) Bom CR 434.
37
ABC v. State (NCT of Delhi), AIR 2015 SC 2569; Section 6(b), Hindu Minority and Guardianship Act, 1956.

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without a male partner, observing that attributing a truncated meaning result in depriving a large
number of women of their right to avail of a vital service benefit, only on account of the choice
that they would have exercised in respect of child birth.38
B. The Supreme Court has also observed that in todays society, where women are increasingly
choosing to raise their children alone there is no purpose in imposing an unwilling and
unconcerned father on an otherwise viable family nucleus.39 In this context, it has been held that
a statute which, while furthering the interest in potential life or some other valid state interest,
has the effect of placing a substantial obstacle in the path of a woman's choice cannot be
considered a permissible means of serving its legitimate ends.40 It is therefore submitted that
Provision 2 of the Act places an unreasonable restriction on a single womans right to procreate
and amounts to an infringement of her right to free choice. This denial of equal protection is in
contravention of the Constitution.41
C. It is submitted that Provision 2 of the Act has classified women based on marital status thereby
excluding unmarried women from being commissioning parents. India has accorded legal
recognition to live-in relationships42 by considering them to be relationships in the nature of
marriage.43 Such women are conferred with all benefits normally due to a wife under the
Protection of Women from Domestic Violence Act, 2005 by being included in the definition of a
domestic relationship.44 They are also given other rights that are available only to spouses, such
as, the right to inherit property after the death of her partner.45 Similarly, the children born out of
such relationships are also considered legitimate.46The Court has also put to rest all questions
regarding the best interests of the child by endorsing the view that if the best possible and most
stable and permanent family route for a child is with a couple who are not married, then the law

38
Rama Pandey v. Union of India and Ors., 221 (2015) DLT 756; Durban in MIA v. State Information Technology
Agency (Pty) Ltd., (D312/2012) [2015] ZALCD20.
39
ABC, supra note 37.
40
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416.
41
Mithilesh Kumari v. Prem Behari Khare, (1982) 2 SCC 95.
42
Uday Gupta v. Aysha and Anr,. 2014 (7) SCJ 209.
43
Svetlana Kazankina and Ors .v. Union of India and Ors,. 225 (2015) DLT 613.
44
Section 2(f), Protection of Women from Domestic Violence Act, 2005.
45
Svetlana, supra note 43.
46
S.P.S. Balasubramanyam v. Suruttayan Alias Andali Padayachi and Ors., AIR 1992 SC 756.

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should not stand in the way of such an arrangement.47 It is submitted that after having recognized
live-in relationships as intrinsically similar to marriages, depriving infertile women in such
relationships of the right to commission surrogacy would amount to an unreasonable restriction
on their right to procreate. Therefore the restriction on unmarried women from being
commissioning parents does not satisfy the rational nexus test and is in violation of Article 14.
1.3.2. Single and unmarried women as surrogates:
A. It is submitted that the exclusion of single and unmarried women from acting as surrogates
results in granting a set of women reproductive autonomy while depriving another set this
autonomy based on their marital status. The rationale to mandate such exclusion seems to be that
single and unmarried women would not have given birth previously.48 It is the Petitioners
contention that this presumption is flawed in itself. This is because a woman may have given
birth outside of a marriage or may have given birth during the subsistence of a marriage which
has now dissolved. Both these possibilities have been ignored under the instant classification.
B. Courts have discouraged any discrimination against classes of women that curtails their
reproductive autonomy.49 Moreover, regulations impinging on this autonomy can only be upheld
if they have no significant impact on the woman's exercise of her right and are justified by
compelling state health objectives.50 In the instant case, there are no public health concerns
arising out of gestational surrogacy that affect single and unmarried surrogates more than they
affect married surrogate offering surrogacy services.51 It is submitted that there is no rationale to
exclude single and unmarried women from offering surrogacy services. Therefore, Provision 2 of
the Act is in violation of Article 14.
2. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS
IN VIOLATION OF ARTICLE 19 OF THE CONSTITUTION?

47
Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309; R (Alconbury Developments Ltd) v. Secretary of State for the
Environment, Transport and the Regions, [2003] 2 AC 295.
48
Statement of Specific Principles for Assisted Reproductive Technologies: Ethical Guidelines For Bio-medical
Research and Human Participants, Indian Council of Medical Research (2006).
49
Inspector (Mahila) Ravina v. UOI and Ors., W.P.(C) 4525/2014.
50
Planned Parenthood of Central Missouri. v. Danforth, 428 U.S. 52 (1976).
51
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Womens Right to Health in India: Issues and
Perspective, 57 INDIAN JOURNAL OF PUBLIC HEALTH 2 (2013).

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The instant issue has arisen out of two writ petitions filed before the Honble Supreme Court.
The writ petition filed by the Association of Medical Practitioners of ART Clinics52 challenges
the Act on the ground that it is in violation of the doctors' and clinics' fundamental right to
practice any profession or to carry on any trade under Article 19 (1) (g) of the Constitution. The
Single Women (Professional Surrogates) Association also filed a writ petition challenging the
provision which restricts the right of single women to act as surrogates stating that it is in
violation of a womans right to trade and profession under Article 19 (1) (g).
It is humbly submitted that Article 19 has been held to be a part of the basic structure of the
Constitution.53 The doctrine of basic structure provides that there are certain fundamental tenets
enshrined in our Constitution that may not be abridged under any circumstance because the very
essence of our Constitution will change with the change in such basic features. 54 Therefore, no
law may be passed in abrogation of the rights under Article 19. The petitioners contend that the
Act is in violation of Article 19 on two grounds. Firstly, doctors and clinics have a right to offer
medical services to all people who want to avail of surrogacy services and all women are allowed
to choose surrogacy as a profession. Secondly, the restrictions imposed55 by the Act are not
saved by Article 19(6).
2.1. THAT THE DOCTORS, CLINICS AND SINGLE WOMEN HAVE A RIGHT TO PRACTICE SURROGACY AS
A TRADE OR PROFESSION UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION

2.1.1. The Supreme Court has held that the term 'freedom' under Article 19(1)(g) means that every
citizen has a right to choose his own employment or to take up any trade or calling, subject only
to the limits as maybe imposed by the state in the interest of public welfare and the grounds
mentioned in Article 19(6).56 It is submitted that the right extends to all professions, trade and
occupations except those that have been considered inherently noxious and outside commerce
and thereby excluded from the guarantee under Article 19(1)(g).57 Every other activity which is
capable of yielding profit and affording livelihood to an individual or body of persons is deemed

52
Hereinafter, "AMPAC".
53
Minerva Mills Ltd. and Ors. v. Union of India and Ors., (1980) 3 SCC 625.
54
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225 .
55
Provisions 1 and 2, the Act.
56
Saghir Ahmed v. State of U.P, [1955] 1 SCR 707(717).
57
Manushi Sangathan, Delhi v. Government of Delhi and Ors., 168 (2010) DLT 168.

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legitimate and is protected as a guaranteed fundamental right.58 In the instant matter, commercial
surrogacy has been recognized as legal.59 In discussing the same, the Supreme Court has
previously acknowledged that there is nothing inherently wrong with the practice of commercial
surrogacy as such and has quoted examples from jurisdictions across the world to establish that it
is a prevalent practice.60
2.1.2. Therefore, it is the contention of the petitioners that the Act is in violation of the guarantee
provided by Article 19(1) (g) on two counts. First, in disallowing doctors and clinics to extend
their practice and cater to foreign nationals and further restricting the clinics from charging a fee
when they facilitate agreements between the intending parties of the surrogacy contract.61
Second, in disallowing single women to be commissioning parents.
2.2. THAT THE RESTRICTIONS IMPOSED BY THE ACT ARE NOT SAVED BY ARTICLE 19(6)
2.2.1. It is submitted that as per Article 19(6), the state may make any law imposing restrictions on the
right guaranteed under Article 19(1)(g) in the interests of the general public, so long as such
restrictions are reasonable.62 In the instant case, the restrictions imposed by the Act are not in the
interest of the general public and therefore are not saved by Article 19(6). The term 'in the
interest of general public' has been said to include public order, public health, public security,
morals, and economic welfare.63 It is our contention that none of these objectives are fulfilled by
the Act.
2.2.2. Foreign Nationals:
Concerns raised over allowing foreign nationals from availing surrogacy services in India
include fear of exploitation of surrogate mothers by the commissioning parents. 64 It is the
submission of the petitioners that banning cross-border surrogacy will not reduce exploitation
and therefore no interest of the public will be served. The same service would be provided to
foreign citizens through unauthorized clinics in isolated or hidden places leading to exploitation
of potential surrogate mothers and other malpractices. The unauthorized markets will thrive
58
Id.
59
Baby Manji Yamada v. Union of India and Anr., (2008) 13 SCC 518.
60
Union of India and Anr. v. Jan Balaz and Ors., 2015 (4) RCR (Civil) 881.
61
Provision 3, the Act.
62
Rajasthan Pradesh V.S. Sardarshahar and Anr. v. Union of India (UOI) and Ors., AIR 2010 SC 2221.
63
Mirzapur, supra note 16.
64
Jan Balaz, supra note 60.

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because the demand for surrogate mothers will remain constant as will the number of women
who wish to earn via surrogacy. The prime example of such black markets flourishing is in the
commercial organ trade industry.65 Further, the black markets will also be able to thrive since
foreign nationals are still allowed to adopt Indian children.66 Therefore, no public interest is
served in banning foreign nationals from availing surrogacy services. Instead a regime of
regulation must be put in place and the surrogates, doctors and clinics must be allowed to
continue catering to foreign nationals in pursuance of their right under Article 19(1) (g).
2.2.3. Single women:
Reasons to disallow single women from being surrogates include threat of exploitation and social
stigmatization. In examining this claim, it is important to take into account the judicial attitude
towards professions which are claimed to have the potential to be exploitative. In relation to
women working in bars, it has been held that instead of putting curbs on womens freedom,
regulation of the concerned profession would be a more tenable and socially wise approach to
prevent exploitation.67 In considering the rights of women to be bar dancers, the Supreme Court
observed, It is true that bar dancers constitute a vulnerable section of the marginalised society.
That, however, by itself does not mean that once their right of gainful employment or carrying on
an occupation or profession in a particular place is prohibited.68 The Court emphasized on
regulation and not on the exclusion of parties to undertake a particular profession, stating that
empowerment should reflect in the law enforcement strategies of the State.69 Therefore, in
imposing this restriction, not only is no public interest served, but also a socially regressive move
is given effect.
3. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS
IN VIOLATION OF ARTICLE 21OF THE CONSTITUTION?

This issue has arisen out of the following writ petitions. The All Inca Mahila Samithi approached
the Honble Supreme Court challenging the Act on the ground that it was in violation of the right

65
Illegal trade in human organs, Letter by the Chairperson of National Human Rights Commission to the Prime
Minister, January 29, 2004.
66
Guidelines Governing Adoption of Children, Ministry of Women and Child Development, New Delhi, July 17,
2015.
67
Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1.
68
State of Maharashtra and Ors. v. Indian Hotel and Restaurants Association and Ors., AIR 2013 SC 2582.
69
Id.

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to livelihood guaranteed under Article 21 of the Constitution. They alleged that there is no basis
for discrimination on the ground of nationality and such discrimination only results in the
surrogates being denied attractive rates for the same work which improves their living conditions
and provide good education to their children. Further, the Single Women (Professional
Surrogates) Association also challenged the provision which restricts the right of single woman
to act as surrogate on the grounds that it was in violation of their right to reproduction and
right to be a parent.70

The petitioners contend that the Act is in violation of Article 21 on three grounds. Firstly, that
the right to privacy of single women is violated, in that, their reproductive autonomy and bodily
integrity is being subjected to state interference without any compelling interest being at stake.
Secondly, in prohibiting foreign nationals from availing surrogacy services, the right to
livelihood of the surrogate mothers and doctors is violated. Thirdly, that the right to health of the
commissioning parents is violated because the Act prevents them from reaching a mental state of
well-being by being parents. The right to health of the surrogate mother is also violated by the
provision that declares that ART clinics shall not be involved in the contract of surrogacy.71

3.1. THAT THE ACT CURTAILS THE RIGHT TO PRIVACY GUARANTEED BY ARTICLE 21 OF THE

CONSTITUTION
3.1.1. Reproductive autonomy:
A. The right to privacy enshrined under Article 21 of the Constitution recognizes that all individuals
have the right to safeguard the privacy of his or her own, family, marriage, procreation,
motherhood, child bearing and education among many other matters. 72 This right to be left alone
has been characterized as individual autonomy that precludes any form of state interference.
Courts have held that the right to bear or beget a child and, conversely, the right not to
reproduce73 is a fundamental right encompassed within the right to privacy thereby protecting
reproductive autonomy.74It has been held that an individual's reproductive autonomy must be

70
Page 4, Factsheet.
71
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
72
Gobind v. State of Madhya Pradesh and Anr., 1975 CriLJ 1111.
73
B.K. Parthasarathi v. State of AP, 2000 (1) ALD 199.
74
Eisenstadt v. Baird, 405 U.S. 38; Skinner v. Oklahoma, (1942) 316 US 535.

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upheld against state intrusion so as to forbid the State from usurping such rights without
overwhelming social justification.75
B. Moreover, the Courts have reasoned that the right to submit to medical techniques to bring about
should be included within the cluster of legally protected choices such as the right to use
contraceptives76 and the right to abortion.77 Extending this line of argumentation, if the
Constitution protects coital reproduction from state interference, it can be inferred that non-coital
reproductive means involving the couples own gametes should also beget equal constitutional
protection.78 The need for a third party donor or surrogate to the couple to beget, bear or
otherwise acquire a child should, under these principles of procreative liberty, also fall within
procreative rights.79 It is submitted that since the Act forbids foreigners, single and unmarried
women from being commissioning parents,80 it curtails their reproductive autonomy and is in
violation Article 21 of the Constitution.
3.1.2. Bodily integrity:
The right to privacy guaranteed by Article 21 encompasses the right to bodily integrity and
personal liberty.81 That is, the right of an individual to be free from restrictions or encroachments
on his person, whether those restrictions or encroachments are directly imposed or indirectly
brought about by calculated measures.82 The right to make decisions about reproduction also
falls within the ambit of personal liberty.83 Such a right may not be interfered with under the
guise of protecting public interest by legislative action which is arbitrary.84 The Act, in barring
single and unmarried women from being surrogates amounts to such arbitrary legislative action.

75
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356.
76
Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Suchita Srivastava and Anr. v. Chandigarh Administration,
AIR 2010 SC 235.
77
Medical Termination of Pregnancy Act, 1971; Roe v. Wade, 410 U.S. 113 (1973).
78
Lifchez v. Hartigan, 735 F. Supp. 1361 (1990).
79
LEGAL AND ETHICAL ISSUES IN HUMAN REPRODUCTION,THE INTERNATIONAL LIBRARY OF MEDICINE, ETHICS AND
LAW 24 (Bonnie Steinbock ed., 1st Edn., 2002); John A. Robertson, The Right To Procreate and In Utero Fetal
Therapy, 3 JOURNAL OF LEGAL MEDICINE 44 (1982).
80
Provision 2, the Act.
81
Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974.
82
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295.
83
S. Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137.
84
Meyer v. Nebraska, (1923) 67 L Ed 1042.

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3.1.3. International legal instruments:

International legal instruments have upheld the right to privacy by protecting an individuals
family from interference. The right to reproduce has also been internationally recognized as a
derivative of the right to found a family, both of which are protected under the right to personal
liberty and security. The Universal Declaration of Human Rights, 1948 and the International
Covenant on Civil and Political Rights provide men and women of full age without any
limitation due to race, nationality or religion the right to marry and found a family.85 The
Yogyakarta Principles have even extended this right to procreate to individuals irrespective of
their sexual orientation.86 Reproductive rights include the right to make decisions concerning
reproduction free of discrimination, coercion and violence with the aim of achieving informed
consent.87It is therefore submitted that the Act violates the state obligations to protect privacy
and reproductive rights under the aforementioned international legal instruments.
3.1.4. Implied Fundamental Rights:
It is an accepted principle of law that the right to life and personal liberty is of the widest
amplitude.88The attempt of the court should be to expand the reach and ambit of the fundamental
rights rather than accentuate their meaning and content by process of judicial construction.89 In
this context, implied constitutional rights would be those which would synchronize with the
express rights guaranteed by the Constitution. Such rights can also be enforced like any other
fundamental right by the citizen of the State. It is submitted that since the right to reproductive
autonomy is a fundamental right, the right to use ART such as surrogacy would qualify as an un-
enumerated fundamental right. These constitutionally recognized rights also qualify as natural
rights that are necessary for the realization of the right to life.90
3.2. THAT THE ACT IS IN VIOLATION OF THE RIGHT TO LIVELIHOOD UNDER ARTICLE 21

85
UN General Assembly, Universal Declaration of Human Rights, Art. 16(1), 10 December 1948, 217 A (III); UN
General Assembly, International Covenant on Civil and Political Rights, Art. 23(2), 16 December 1966, United
Nations Treaty Series, vol. 999, p. 171.
86
Principle 24, Yogyakarta Principles - Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity, International Commission of Jurists, (2007).
87
Report of the International Conference on Population and Development, Principle 1, A/CONF.171/13 (18 October
1994).
88
Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 SC 2178.
89
Pathumma v. State of Kerala, [1978] 2 SCR 537.
90
I.C. Golaknath v. State of Punjab, [1967] 2 SCR 762.

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3.2.1. The right to life extends to all those faculties that are necessary to live a life with dignity and
equality.91 The expression includes the right to livelihood, better standard of living and hygienic
conditions in work place and leisure.92 The restrictions of right to livelihood can be justified if it
is according to procedure established by law, such law being fair, just, and reasonable both
substantively and procedurally.93 In the instant case, only single and unmarried women were
barred from being surrogate mothers. This denies them the right to earn their livelihood in this
sector and consequently places them at an economic disadvantage as compared to the married
surrogates. Likewise, the ART clinics were prevented from offering such treatment to foreign
commissioning couples, single and unmarried women.94 In disqualifying the aforesaid groups of
people from availing surrogacy, a sizeable proportion of the demand is eliminated which has an
adverse effect on the income of both the surrogate mothers as well as the clinics. As has been
established previously, such classifications are arbitrary and therefore do not comply with the
standard of substantive due process.
3.2.2. As a result of this classification, the category of women excluded by the Act to act as surrogate
mothers would be rendered vulnerable by the loss of freedom because of the impugned Act. 95
Furthermore, there is no compelling interest that justifies the deprivation of livelihood of the
ART clinics as has been established above. Therefore, the restrictions on livelihood are not valid
and curtail the right to livelihood protected by Article 21 of the Constitution.
3.3. THAT THE ACT VIOLATES THE RIGHT TO HEALTH UNDER ARTICLE 21
3.3.1. Commissioning Parents:
Health has been recognized as the state of complete physical, mental and social well-being and
not merely the absence of disease or infirmity thereby falling under the ambit of right to life in
Article 21.96 Infertility has been defined as a disease of the reproductive system defined by the
failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual

91
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
92
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
93
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
94
Provision 2, the Act.
95
Anuj Garg, supra note 67.
96
Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286.

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intercourse."97 The growth in the use of ART methods is due to the recognition of the fact that
infertility as a medical condition is a huge impediment in the overall wellbeing of couples.98 The
Courts have held that right to health and medical care is a fundamental right under Article 21
read with Articles 39(c), 41 and 43 of the constitution.99 This encompasses the professional
responsibility to provide medical services in keeping with the technological advancement.100
Therefore, by denying single, unmarried women, and foreigners from availing of surrogacy, the
Act violates their right to health under Article 21.
3.3.2. Surrogate mothers:
The Act provides that dealings between commissioning parents and the surrogate woman would
be on principal-to-principal basis without any liability or involvement of ART Clinics. The
surrogates are entitled to full knowledge regarding the risk to their health before they give their
consent and the contract is signed. The concept of informed consent i.e., the patient having an
adequate level of information about the nature of the procedure to which he is consenting to has
been held to be integral to all medical procedures.101 In the instant case, since the point of
consent is the signing of the contract, such contract cannot be signed without the involvement of
the ART clinics since it is the clinics that are best placed to inform the surrogates of the possible
health risks. Such a clause directly violates the health of the surrogate mothers.
3.3.3. International legal instruments:
Under international conventions such as the United Nations Commission on Human Rights, the
right to health includes the right to a system of health protection which provides equality of
opportunity for people to enjoy the highest attainable level of health as well the right to sexual
and reproductive freedoms.102 To this end, states recognize the right to benefits of scientific

97
Revised Glossary of ART Terminology, International Committee for Monitoring Assisted Reproductive
Technology (ICMART) and the World Health Organization (2009); Section 2(v), Draft Assisted Reproductive
Technology (Regulation) Bill, 2014.
98
Report of the Law Commission of India (2009).
99
C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., AIR 1992 SC 573.
100
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.
101
Samira Kohli v. Dr. Prabha Manchanda and Anr., AIR 2008 SC 1385; Canterbury v. Spence, 1972 [464]
Federal Reporter 2d. 772.
102
Factsheet No. 31, UN Commission on Human Rights (2003); Committee on Economic Social and Cultural
Rights, General Comment No. 14 (2000); Paragraph 41, UN General Assembly, International Covenant on
Economic, Social and Cultural Rights, 16 December 1966, United Nations Treaty Series, vol. 993, p. 3.

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progress and its applications.103 The prevention and appropriate treatment of infertility has been
included in the International Conference on Population and Development Programme of
Action104 as a component of the primary health care system.105 The Programme of Action further
provides the right of access to appropriate health-care services that will enable women to go
safely through pregnancy and childbirth and provide couples with the best chance of having a
healthy infant.106 Since India is signatory to the Programme of Action and a member of the
UNCHR, the aforementioned commitments are binding. Therefore, it is submitted that the Act is
in contravention of Indias obligations under international covenants.

103
Article 15(1), International Covenant on Social, Economic and Cultural Rights, 993 UNTS 3 (1996).
104
Hereinafter, the Programme of Action 1993.
105
Programme of Action 1993; CEDAW Committee General Recommendation 19, Violence against Women, U.N.
Doc. A/37/48.
106
Principle 8, Programme of Action.

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PRAYER

WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT
MAY BE PLEASED TO:

I. HOLD THAT THE 'COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS UNCONSTITUTIONAL.

Counsel for Petitioners

-MEMORIAL ON BEHALF OF THE PETITIONERS-