Bombay HC notice to Centre, state on couple’s surrogacy plea, Legal News, ET LegalWorld – Legal Firms


The Bombay high court on Monday issued notice to the Centre and the state on a petition filed by a couple seeking directions to government to constitute the District Medical Board, in Maharashtra, as prescribed under the new surrogacy law and to expeditiously process applications to register infertility clinics in Mumbai.

There is not a single surrogacy clinic in the city whose registration has been processed, said advocate Tejesh Dande, appearing for the couple.

The couple, who seek a child through surrogacy, said the court may else permit them to proceed with the surrogacy without complying with permissions prescribed under the 2021 Surrogacy (Regulation) Act. The woman said she is 41 and a chronic diabetic, with little chance of other assisted reproductive treatment (ART) working for her.

State government pleader Purnima Kantharia said she would take instructions, and the HC bench of Justices S V Gangapurwala and Arif Doctor posted it for hearing on December 12.

The couple from a neighbouring state, presently residing in Mumbai for treatment, say they married in 2016, and their desire to become parents has led them to fertility experts and clinics since 2019. Their petition says no surrogacy clinic-their hope now-has started functioning yet in Mumbai, hence their “application” for ART is “not yet acknowledged by any clinic.” Their reason of undertaking treatment in Mumbai is to “avoid unnecessary discussions amongst relatives and friends.” Under the Act, it is essential a District Medical Board certifies “necessity and appropriateness of gestational surrogacy as well as necessity of ART for the intending couple.” Unless so certified, no fertility clinic is entitled to treat them. Besides, the clinic itself has to be registered under the Act.

The Act says surrogacy procedures shall be conducted on a couple only if they hold a “Certificate of Recommendation” from the Board, which the Act says is ‘National Assistance Reproductive Technology and Surrogacy Board.’ The Centre constitutes such a board.

But the rule is also to have ‘certificate of essentiality’ based on certificate of medical necessity from a ‘District medical board under Section 4 (iii)(a) (I) which is under the chairpersonship of ‘Chief Medical Officer’ or joint director of health services of the district. But when the couple went to state-run JJ hospital and other state hospitals, they said “no such district medical board” has been constituted yet.


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