Before The Hon'Ble High Court of Alpha: Public Interest Litigation (Civil) No.

INTER-UNIVERISTY MOOT COURT COMPETITION
TEAM CODE: KRMUMCC - 12
INTER-UNIVERSITY MOOT COURT COMPETITION, 2022
K.R.MANGALAM UNIVERSITY, GURUGRAM, HARYANA
BEFORE THE HON’BLE HIGH COURT OF ALPHA
PUBLIC INTEREST LITIGATION (CIVIL) NO. __/__
UNDER ARTICLE 226 OF THE CONSTITUITION OF INDISTAN
(PETITIONER)
MR. MANOJ
V.
UNION OF INDISTAN & ORS
(RESPONDENT)
ON SUBMISSION TO THE HON’BLE HIGH COURT OF ALPHA
COUNSEL APPEARING ON BEHALF OF THE PETIONER
MEMORANDUM ON BEHALF OF THE PETITIONER
1
MEMORANDUM ON BEHALF OF PETITIONER
TABLE OF CONTENTS
LIST OF ABBREVIATIONS…………………………………………………….4
INDEX OF AUTHORITIES……………………………………………………...5
STATEMENT OF JURISDICTION…………………………………………….7
STATEMENT OF FACTS……………………………………………………….8
STATEMENT OF ISSUES……………………………………………………...10
SUMMARY OF ARGUMENTS………………………………………………..11
ARGUMENTS ADVANCED-
1. WHETHER THE ACT IS A VIOLATIVE OF ARTICLE 21 OF THE

CONSTITUTION OF INDISTAN OR NOT?
1.1 INFRINGMENT OF WOMEN’S RIGHT TO MAKE REPRODUCTIVE

CHOICE …………………………………………………………………………13
1.2 VIOLATION OF RIGHT TO LIVELIHOOD…………………………….16
1.3RIGHT TO PRIVACY ………………………………………………………17
2. WHETHER THE BLANKET BAN ON COMMERCIAL SURROGACY

UNDER THE ACT IS APPROPRIATE OR NOT?
2.1 ABSENCE OF COMMERCIAL SURROGACY CREATE MORE
EXPLOITATION………………………………………………………………..20
2.2 VIOLATION OF ARTICLE 23 OF INDISTAN CONSTITUTION……..20
2
3. WHETHER THE ACT IS VIOLATIVE OF ARTICLE 14 AND 19 OF

THE CONSTITUTION OF INDISTAN OR NOT?
3.1 INFRINGMENT OF ARTICLE 14………………………………………...23
3.2 INFRINGEMENT OF FREEDOM OF TRADE AND COMMERCE OF

THE SURROGATE MOTHER: ARTICLE 19(1)(G)………………………...27
PRAYER................................................................................................................29
3
LIST OF ABBREVATION
WP Writ Petition
Cal Calcutta
SCC Supreme Court Cases
Hon’ble Honourable
AIR All India Report
Ors Others
v. Versus
Art Article
PIL Public Interest Litigation
App. Crl Criminal Appeal
UOI Union of India
SC Supreme Court
SCR Supreme Court Reports
Pg. No. Page Number
4
INDEX OF AUTHORITIES
 BOOKS REFERRED
 J.N Pandey, Indian Constitutional Law (58th edition, 2022, Lexis Nexis)
 M.P. Jain, Indian Constitutional Law (8th edition, 2022, Lexis Nexis)
 Bare Act of Constitutional of India
 STATUTES
 Constitutional of India, 1950
 Surrogacy Regulation Act, 2021
 Assisted Reproductive Technology (Regulation) Act, 2021
 LEGAL DATABSES
 Manupatra
 SCC Online
Case Laws Referred
1. Anuj Garg & ors. v. Hotel Association of India and ors.AIR 2008 SC 663..26
2. B.K. Parthasarathi v. Govt. of A.P. 1999 SCC Online AP 514……………...18
3. Chintman Rao v. State of M.P. AIR 1951 (38) SC 118……………………….28
4. Dayaram Shetty v. International Airport Authority AIR 1979 SC 1628……24
5. Devika Biswas v. Union of India (2016) 10 SCC 726………………………..15
6. E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555……………………...24
7. Govind v. State of M.P. AIR 1975 SC 1378…………………………………….15
8. Jan Balaz AIR 2010 Gul 21………………………………………………………21
9. Kharak Singh v. State of U.P. and ors. AIR 1963 SC 1295………………….13
5
10. K.S. Puttuswamy v. Union of India……………………………………………...18

11. Maneka Gandhi v. UOI AIR 1978 SC 597 ……………………………………24
12. Meera Santosh Pal v. Union of India 2017 3 SCC 462……………………….14
13. National Legal Service Authority v. Union of India AIR 2014 SC 1863……27
14. Navtej Singh Johar and ors. v. UOI AIR 2018 SC 4321……………………...27
15. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180…………..17
16. PUDR v. Union of India AIR 1982 SC 1473…………………………………...21
17. Rupinder Singh v. UOI AIR 1983 SC 65……………………………………….24
18. S.G. Jsisinghani v. UOI 1967 AIR 1427, 1967 SCR (2) 70………………......24
19. Siddharam Satlingappa Mhetre v. State of Maharashtra & ors
(2011)1SCC694……………………………………………………………………13
20. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75………………….24
21. Sucheta Srivastva v. Chandigarh Administration AIR 2010 SC
235…………………………………………………………………………………...14
6
STATEMENT OF JURISDICTION
The Hon’ble High Court Of Alpha has the Jurisdiction In This Matter Under Article 226 1 of the
Indistan Constitution since High Court has clubbed all the petitions.
1
Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32.
7
STATEMENT OF FACTS
The boom in surrogacy in Union of Indistan commenced twelve years ago. Foreign nationals
preferred Indistan as a convenient place for surrogacy. This was a result of the inexpensive
procedure available at Indistan. The absence of legislation for surrogacy resulted in the use of
agreements to regulate the terms and conditions of the surrogacy, with the aid of hospitals. There
were few, like the Jeeva Hospital and Research Centre (JHRC) that were reliable in their care
and treatment of parties involved in the surrogacy agreement. JHRC is situated in the state of
Delta, Indistan, is a world-renowned In Vitro Fertilization (IVF) centre with clientele from
across the globe. Their services are stated to be state of the art and have a high success rate, as
opposed to other fertility centers within and outside of Indistan.
The Chairman of JHRC, Dr. Sharma is a specialist in the field of human embryology. She also
trains and grooms surrogate mothers, and has close ties with the local adoption agency, where
prospective parents want to connect with the surrogate mother of local adoption agency. The
laws of India are in pari matria to the Union of Indistan.
In the present case, Mr. Rohan Joshi and Mrs. Tamanta Joshi were married in 2011 in Indistan,
in a traditional Hindu wedding and have been living in the state of Alpha since 2013. However,
they ended up with a divorce in the COVID year of 2020. The loneliness during quarantine and
lack of companionship hit him hard during that period. Hence, he is now desirous of having a
child through the process of surrogacy. Mr. Rohan Joshi, 35, has his family’s support to become
a parent via the procedure. He applied for surrogacy in the middle of the year 2021. Without
further delay, Mr. Rohan Joshi signed the agreement with the JHRC in the October of 2021 and
the procedure of surrogacy initiated. The surrogate mother had completed a series of initial steps
of surrogacy and the process of embryo transfer was due in the month of February of 2022.
However, he was unaware of the changes brought about in the Assisted Reproductive
Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 (Now referred to as
Act), enforced in January 2022. Under the new law passed (Surrogacy (Regulation) Act, 2021) to
regulate the massive surrogacy industry, he is ineligible. Under the law banning commercial
8
surrogacy, single men and women, live-in couples, and same-sex couples are excluded. Due to
the sudden implementation of the Act, the JHRC terminated the process of this surrogacy in the
middle. Furthermore, they even refused to refund the amount claiming that they had already
initiated the process and that the initial stage consumed a huge investment.
Outraged, Mr. Manoj filed a petition against the Act claiming that this Act, although
implemented with the intention of protecting the rights of surrogate mothers and to ban the
commercial surrogacy in India, completely ignored and discriminated against the other section of
the society. It violates his right to reproduction under Article 21.
Following this, an LGBTQ couple, who were also desirous of a child through surrogacy, filed a
petition against this Act claiming that the aforementioned Act is highly discriminatory against
the whole LGBTQ community depriving them from making a family. The right to parenthood
for people of the LGBTQ+ community is not recognised or accommodated by present enactment
or even society.
Ever since the law was passed, Indistanians who work with infertile couples had predicted a
challenge in the courts on the grounds that the law is discriminatory against Indistanians who are
not heterosexual and married.
9
STATEMENT OF ISSUES
FOLLOWING ARE THE ISSUES RAISED BEFORE THE HONOURABLE HIGH COURT-



10
SUMMARY OF ARGUMENTS
It is humbly submitted before the Hon’ble Court that the act is violative of art 21 of the
Constitution of Indistan. The act is violative of reproductive choice of women, right to livelihood
and right to privacy. It provides that the women has right to make reproductive choice or not.
Reproductive rights are the integral to women rights. Right to reproduction and child rearing is
as an essential facet of art 21. Reproductive rights are also internationally recognized. The right
to livelihood is an integral part of the right to life guaranteed under Article 21 of the Indian
Constitution. “The easiest way of depriving a person his right to life would be to deprive him of
his means of livelihood to the point of abrogation.” Thus, by putting a complete ban on
commercial surrogacy, it has potentially violated Article 21 rights of the many women who are
dependent upon surrogacy to pull themselves and their families out of poverty. The SRA requires
a variety of public dissemination of information about a couple’s infertility in the form of a
certificate sought from the District Medical Board under section 4(iii)(a)(I) and the order sought
from a Magistrate’s court, under section 4(iii)(a)(II); this would violate their right to privacy.
Therefore, it is humbly submitted before the Hon’ble Court that there is violation of art 21.

It is humbly submitted before the Hon’ble Court that the blanket ban on commercial surrogacy
under the act is not appropriate. Commercial ban on surrogacy will lead to create more
exploitation of women. It has also been pointed out that with small family norms and increase in
number of working women, very few ‘close relatives’ would be interested in helping out by
being a surrogate. It has also been pointed out that with small family norms and increase in
being a surrogate. Also, the intending parents may not be comfortable sharing their infertility
issue with their relatives as it is a private matter. In the present socio-cultural familial context
where impotence and infertility is associated with social stigma and ridicule, such disclosure of
11
medical incapacity of women to bear child before her in laws and family members is breach of
her privacy and confidentiality. This will rather put her at greater risk of domestic violence,
abuse, name shaming, loss of respect, eviction of women from home and annulment of marriage.
It is further submitted that art 23 is also being violated by banning the commercial surrogacy.
The Surrogacy (Regulation) Act, 2021 through its altruistic model promotes ‘forced labour’ as
non-payment of any compensation is against Article 23 of the Constitution of India.
Reproductive labor is involved in making one’s bodily services available for surrogacy and egg
donation. Therefore it is humbly submitted before the Hon’ble Court that there must be a
blanket ban on commercial surrogacy.

It is humbly submitted before the Hon’ble Court that the act is violative of art 14 and 19. These
impugned acts create arbitrariness as it creates reasonable classification. The SRA criminalizes
the act of choosing surrogacy for everyone apart from married couples and a small section of
women. The ART Act and SRA exclude and discriminate, without any rationality, against same-
sex couples and other members of the LGBTQI community, single women who are neither
widowed nor divorced, single women who are widowed and/or divorced and less than the age of
35 years or more than 45 years old, single men, couples suffering from secondary infertility, and
couples where either or both partners do not fall within the defined age brackets. The SRA
imposes a blanket ban on commercial surrogacy, which is neither desirable nor may be effective.
It denies commercial surrogates the opportunity to exercise. It is further contended that the
impugned act is violative of article 19(1)(g). Article 19(1)(g) protects the interests of a surrogate
mother who wants to earn money through surrogacy and also of the doctor who practices in
Assisted Reproductive Technology (“ART”) for procreating a child through a surrogate mother.
The State cannot impose an absolute restriction on the practice of surrogacy or ART
procedure. In place of imposing absolute restriction on surrogacy, State can bring such laws,
rules and regulations, which can protect the surrogate mother from exploitation and at the same
time, regulate the practice of commercial surrogacy. Therefore the impugned act is violative of
Art 14, 19.
12
ARGUMENTS ADVANCED
1. WHETHER THE ACT IS A VIOLATION OF ARTICLE 21 OR NOT?
It is humbly submitted before the hon’ble court that there has been a violation of art 21 of
Indistan Constitution.
1.1 INFRINGMENT OF WOMEN’S RIGHT TO MAKE REPRODUCTIVE

CHOICE
It is humbly submitted before the Hon’ble Court that the act has violated article 21 as women has
right to make reproductive choice.
Article 21 talks about protection of life and personal liberty which says,” No person shall be
deprived of his life or personal liberty except according to procedure established by law.”
The expression `personal liberty' in Article 21 is of the widest amplitude and it covers a variety
of rights which go to constitute the personal liberty of a man and some of them have been raised
to the status of distinct fundamental rights. 2 Personal Liberty means some freedoms and dignity
to be provided to all the citizens of the country so that they can live with peace without the
interference of state in their life matters. Then, it was that the Article applies on both citizens as
well as non-citizens. In Kharak Singh v. State of U.P. and Others3, Subba Rao, J. defined
`personal liberty, as a right of an individual to be free from restrictions or encroachment on his
person whether these are directly imposed or indirectly brought about by calculated measure.
Article 21 provides that the women has right to make reproductive choice whether to reproduce
or not is the choice of the women. Reproductive rights are integral to women’s rights. To be able
to exercise their human rights and make essential decisions, women need to be able to decide
freely and responsibly on the number and spacing of their children and to have access to
information, education, and services.
2
Siddharam Satlingappa Mhetre v. State Of Maharashtra And Ors. (2011)1SCC694
3
AIR 1963 SC 1295
13
Reproductive rights are essential to the realization of all human rights. They encompass a
spectrum of civil, political, economic, and social rights, from the rights to health and life, to the
rights to equality and non-discrimination, privacy, information, and to be free from torture or ill-
treatment. States' obligations to guarantee these rights require that women and girls not only have
access to comprehensive reproductive health information and services but also that they
experience positive reproductive health outcomes such as lower rates of unsafe abortion and
maternal mortality and the opportunity to make fully informed decisions free from violence,
discrimination, and coercion about their sexuality and reproduction.
Violations of reproductive rights disproportionately harm women due to their capacity to become
pregnant and legal protection of these rights as human rights is critical to enable gender justice
and the equality of women. Therefore, the right to life (Article 21) which is understood through
jurisprudence to include the rights to health, dignity, freedom from torture and ill treatment, and
privacy.
In Meera Santosh Pal vs. Union of India4, the Supreme Court held that women's right to make
reproductive choice is also a dimension of personal liberty as understood under Article-21 of the
Constitution.
The three-judge bench in Sucheta Srivasata v. Chandigarh Administration5, the reproductive

rights of women is also a part of article 21 as personal liberty. This view has been upheld by the
Supreme Court in the landmark privacy judgment.
This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution;
it is underscored by the commitment of the Constitution framers to ensure that circumstances
conducive to the exercise of this choice are created and maintained by the State at all times.
There is no doubt that a woman's right to make reproductive choices is a dimension of `personal
liberty' as understood under Article 21 of the Constitution of India. It is important to recognise
that reproductive choices can be exercised to procreate as well as to abstain from procreating.
The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should
be respected.
4
(2017) 3 SCC 462
5
AIR 2010 SC 235
14
The Statutory recognition of a women's right to make reproductive choices flows from this
inviolable guarantee under Article 21.
In Gobind v. state of MP6 the court stated that “Nothing would advance women’s welfare more
than respecting their reproductive autonomy .such autonomy must encompass and protect the
personal intimacies of marriage, motherhood, procreation, and child-rearing.”
In Devika Biswas v. Union of India7, the Supreme Court held that the right to reproduction is an
important component of the “right to life” under Article 21. Reproductive rights of a woman
include the right to carry a baby, give birth, and raise children. Rights to privacy, dignity, and
integrity are also included.
1.1.1Reproductive rights are internationally recognized
A) Universal Declaration of Human Rights, 1948 -Article 16(1) of the Universal Declaration of
Human Rights, 1948 (UDHR) asserts, “Men and women of competent age without any limitation
due to nationality, race or religion, have the right of to marry and the right to start a family The
expression ‘to start a family’ denotes the reproductive rights of an individual
B) Teheran Conference on Human Rights in 1968 - The reproductive right for the first time was
recognized in the Teheran Conference on Human Rights in 1968, which provides the “rights to
decide freely and responsibly on the number and spacing of children and to have the access to
the information, education, and means to enable them to exercise these rights.”
C) International Conference on Population and Development, 1994. The International

Conference on Population and Development (“ICPD”) or popularly known as Cairo Conference
has specifically talked about the reproductive rights of the individuals in its Para 7.3.23 The aim
of the conference is to provide an opportunity for individual and couples to exercise the rights
like right to have a child in the way they want, the number of children, spacing and timing
between them etc
D) Beijing Conference, 1995-The Fourth World Conference on Women (1995) in Beijing has
sustained the reproductive rights. It states that the human rights of women also include the right
6
AIR 1975 SC 1378
7
(2016) 10 SCC 726
15
to control over her body. She is free to decide the matters relating to her body including
reproductive health, violence and discrimination.
It is therefore clear that the right of a woman to exercise her reproductive choice is a dimension
of personal liberty as understood under Article 21 of the Constitution of India and she has a
sacrosanct right to have her bodily integrity protected. The act of forcing a woman to bear with
an unwanted intrusion on her body and endure the consequences of that intrusion would be a
clear transgression of her inviolable fundamental right of personal liberty guaranteed under
Article 21 of the Constitution
Therefore it is humbly submitted before the Hon’ble Court that it is a choice of a women only
that if she wants to reproduce or not and it’s her personal liberty which constitution itself talks
about since the act imposes blanket ban on commercial surrogacy section 38 of the act, also
restricting the scope of liberty of women in terms of having the baby by allowing only relatives
to be surrogate mother section 5 of the act and the communities such as single people, older
couples, LGBTQ+ couples, are all completely denied the right to have reproductive choices,
which, arguably, is a violation of Article 21 of the Indistan Constitution. Therefore the act is
violating article 21 by way of infringing right to reproductive choice.
1.2 VIOLATION OF RIGHT TO LIVELIHOOD
It is also humbly submitted on behalf of the petitioner that there is also a violation of right to
livelihood.
The impugned act which only permits “close relatives” of the intending couple to serve as a
surrogate long as the concerned surrogacy is “altruistic” (with no charges, remuneration, or
monetary incentives) and not commercial. The blanket on commercial surrogacy would rob
underprivileged women of the opportunity to earn a livelihood by way of serving as surrogates.
In India, women have fewer economic opportunities, which pre disposes them towards poverty.
In this light, commercial surrogacy becomes an effective tool for self-sustenance. The Supreme
16
Court of India in Olga Tellis v. Bombay Municipal Corporation8 which is popularly known as
‘Pavement Dwellers Case’ held that the right to livelihood is an integral part of the right to life
guaranteed under Article 21 of the Indian Constitution. The Court reasoned that “the easiest way
of depriving a person his right to life would be to deprive him of his means of livelihood to the
point of abrogation.” Thus, by putting a complete ban on commercial surrogacy, it has
potentially violated Article 21 rights of the many women who are dependent upon surrogacy to
pull themselves and their families out of poverty.
1.3RIGHT TO PRIVACY
It is humbly submitted before the Hon’ble Court that there has been violation of right to privacy
under article 21 of the Constitution.
Black’s Law Dictionary which is considered the authority in the legal arena defines Privacy as a
“right to be let alone; the right of a person to be free from any unwarranted publicity; the right to
live without any unwarranted interference by the public in matters with which the public is not
necessarily concerned.”
Privacy is a fundamental human right recognized under Article 12 of the United Nations
declaration of Human Rights (UDHR)9 and Article 17 of the International Covenant on Civil and
Political Rights (ICCPR)10. In India, Right to Privacy has not been explicitly mentioned as a
fundamental right in the Indian Constitution. However, in the light of recent judicial
pronouncements of the Supreme Court, the Right to Privacy has been recognized as a
fundamental right under Article 21 of the Indian Constitution. Article 21 of the Indian
Constitution states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law”. Therefore, Right to Privacy is protected as an
intrinsic part of personal life and liberty enshrined in the Article 21 of the Indian Constitution.
8
AIR 1986 SC 180
9
Article 12 of UDHR says,” No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks.”
10
Article 17 of ICCPR affirms that no one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation. Article 17(2) states that
everyone has the right to the protection of the law against such interference or attacks.
17
Govind v. State of M.P.11, this is the first case wherein the Supreme Court expressly declared
Right to Privacy as a fundamental right. The Supreme Court in this case held that the right to
privacy is derived from both the right to life and personal liberty as well as freedom of speech
and movement. The Court further observed that the right to privacy included “personal
intimacies of the home, the family marriage, motherhood, procreation and child rearing”. In B.K.
Parthasarathi v. Govt. of A.P.12, wherein the Andhra Pradesh High Court held that State's
interference on procreation amounts to a direct encroachment on one's “right to privacy. The
stance of privacy was fortified in Aadhaar judgment. Hence, “woman alone should have the right
to control her body, fertility and motherhood choices.
In the matter of Justice K.S Puttaswamy v. Union of India13, wherein the nine-judge bench ruled
that Right to Privacy is a fundamental right under Article 21 of the Indian Constitution.
Surrogacy is a private affair, and the pre-condition of a genetically related surrogate mother
would be in violation of the basic right to privacy and reproductive autonomy of infertile
couples.
Further intended parents must be “proven infertile”, and obtain an “eligibility certificate” as per section
4(iii)(a)(I) of the SRA Act which provides that no surrogacy or surrogacy procedures shall be
conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy
clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that
the following conditions have been fulfilled, namely:—
(a) the intending couple is in possession of a certificate of essentiality issued by the appropriate
authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfillment of
the following conditions, namely:—
(I) a certificate of a medical indication in favour of either or both members of the intending
couple or intending woman necessitating gestational surrogacy from a District Medical Board.
This provision of the SRA act violates right to privacy of intending couple.
11
AIR 1975 SC 1378
12
1999 SCC OnLine AP 514
13
(2017) 10 SCC 1
18
The ART Act violates the primary rights of oocyte donors, who have a central role in surrogacy.
Section 27(6) of the Act14 requires the provision of government-issued identity card, specifically
the Aadhar card details of the donor, to assisted reproductive technology banks. However, as
donors must be anonymous, mandating details of the Aadhar card breaches their right to privacy
under Article 21 of the Indian Constitution, as well as international human rights instruments
including Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of
International Covenant on Civil and Political Rights (ICCPR). In Spain, as in India, surrogacy is
altruistic, but the legislation protects the right to anonymity of the donor by only permitting the
collection of the health information of the donor in case of a medical emergency; the identity of
the donor is not recorded under any condition. Similarly, in the US, statutory requirements
maintain the donor’s anonymity, though donors have the choice to reveal their identity
voluntarily.
Hence, based on the above mentioned contentions, the fundamental right article 21 is being
violated by infringing right to privacy, right to reproductive choice and right to livelihood.

The counsel on behalf of the petitioner most humbly submits that blanket ban on commercial
surrogacy is not appropriate.
Section 2(b) of the Surrogacy Regulation Act 2021 defines ‘altruistic surrogacy’ as, “The
surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever
nature, except the medical expenses and such other prescribed expenses incurred on surrogate
mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or
her dependents or her representative.” And section 2(g) defines ‘commercial surrogacy’ as,
“Commercialization of surrogacy services or procedures or its component services or component
14
Section 27(6) of the act provides,” (6) A bank shall obtain all necessary information in respect of a sperm or
oocyte donor, including the name, Aadhaar number as defined in clause (a) of section 2 of the Aadhaar (Targeted
Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, address and any other details of such
donor, in such manner as may be prescribed, and shall undertake in writing from such donor about the
confidentiality of such information.”
19
procedures including selling or buying of human embryo or trading in the sale or purchase of
human embryo or gametes or selling or buying or trading the services of surrogate motherhood
by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or
kind, to the surrogate mother or her dependents or her representative, except the medical
expenses and such other prescribed expenses incurred on the surrogate mother and the insurance
coverage for the surrogate mother.”
2.1 ABSENCE OF COMMERCIAL SURROGACY CREATE MORE

EXPLOITATION
It also warrants that the surrogate mother should be a close relative who is genetically related to
the intending couple. It has also been pointed out that with small family norms and increase in
being a surrogate. Also, the intending parents may not be comfortable sharing their infertility
issue with their relatives as it is a private matter. In the present socio-cultural familial context
where impotence and infertility is associated with social stigma and ridicule, such disclosure of
medical incapacity of women to bear child before her in laws and family members is breach of
her privacy and confidentiality. This will rather put her at greater risk of domestic violence,
abuse, name shaming, loss of respect, eviction of women from home and annulment of marriage.
It is also submitted that one cannot guarantee that the altruistic surrogate who is a ‘close relative’
is not coerced into becoming a surrogate by just removing the commercial component of the
practice. Not every member of a family has the ability to resist a demand that she be a surrogate
for another family member. As such within family, surrogacy might become even more
exploitative than compensated surrogacy.
2.2 VIOLATION OF ARTICLE 23 OF INDISTAN CONSTITUTION

The Surrogacy (Regulation) Act, 2021 through its altruistic model promotes ‘forced labour’ as
non-payment of any compensation is against Article 23 of the Constitution of India 15.
15
Article 23 of the Constitution provides, “(1) Traffic in human beings and begar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in
imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or
any of them.”
20
Reproductive labor is involved in making one’s bodily services available for surrogacy and egg
donation. We emphasize that the lack of compensation for providing reproductive labor is
arguably violative of Article 23 of the Constitution of India, which prohibits forced labor. In
PUDR v. Union of India16, also referred to as the ‘Asiad Games case’, Justice Bhagwati
elaborated on the meaning of the term ‘force’ under Article 23 of the Constitution and concluded
that “any factor which deprives a person of a choice of alternatives and compels him to adopt
one particular course of action may properly be regarded as ‘force’ and if labour or service is
compelled as a result of such ‘force’, it would be ‘forced labour. Since only a person suffering
from hunger or starvation would accept a job where the remuneration is less than the minimum
wage, the court reasoned that any labour remunerated at a level less than the minimum wage
would be considered to be forced labour under Article 23. We believe that not allowing for
compensation for egg donors therefore amounts to state approval of forced labour.
Pure altruistic drive for any substantial and meaningful contribution of someone else’s life is
unreasonable to expect in today’s economic and social environment. Endorsing altruistic
surrogacy will enforce emotional and social pressure on close female relatives without any
compensation for immense emotional and bodily labour of gestation involved in surrogacy as
well as loss of livelihood. A woman should not be expected to act as a surrogate and go through
all the trial and tribulations of physical and emotional tolls of this arrangement free of cost and
only out of compassion. A surrogate is indeed the most important stakeholder in this whole
process who puts her life to risk and thus should be compensated for doing so.
If India imposes a complete ban on commercial surrogacy, then, it would drive the entire activity
underground and its pernicious ramifications and accentuate exploitation. There is a lesson in the
way abortion has been legalized. Else it will drive Indian infertile couples to seek surrogacy in
jurisdictions where it is allowed, whether regulatory (like in Ukraine) or unregulated in some
Third World countries. The same dilemma was faced by the German couple in Jan Balaz case17,
a German couple entered into a contract with a surrogate mother named Marthaben Immanuel
Khrishti. Twin children were born. The German couple was working in the United Kingdom and
the children required Indian passports to travel. Since their citizenship was being litigated in the
16
AIR 1982 SC 1473
17
AIR 2010 Gul 21
21
courts the passport authorities withheld the passports. Germany, the parent state of the German
couple did not recognize surrogacy. Blanket ban on commercial surrogacy would increase
migration to other countries.
The counsel further submits that permitting uncompensated surrogacy but prohibiting
compensated surrogacy assumes the women’s inherent role to give birth but it denies women the
capacity to earn wages for this work. By banning compensated surrogacy, there could be a black
market in surrogacy services. The whole surrogacy service could go underground and would lead
to increased exploitation with no mechanism for protection of any of the parties involved in the
surrogacy arrangement. There is also the likelihood of surrogacy being driven underground
involving illicit inter-country movement of women to be surrogate mothers into foreign nations
or safe surrogacy heavens globally for monetary returns. This may subject the surrogate to worst
sufferings. Hence, a prohibition of commercial sector is likely to hurt the very people it seeks to
protect.
The most fundamental suggestion is the rephrasing of the term commercial and replacing it with
compensated surrogacy arrangement as feasible with the law and policy makers. The term
compensated surrogacy means such surrogacy arrangements providing for reimbursement and
reinstatement of health of surrogate mother for undergoing gestation and child birthing and for
any sickness related to same and nothing beyond this amount of reasonable cost may be paid to
the surrogate mother. Thus, it may be distinguished from commercial surrogacy arrangements.
Compensated surrogacy is legal in many foreign legal jurisdictions namely UK, New South
Wales Australia18, Canada19 as well as in many other nations. In all these nations only payment
of “reasonable expenses” are legally permitted under these statutes. In many UK 20 cases namely
Re the Matter of TT (A Minor)21, Re P (Surrogacy: Residence) 22 the courts have permitted and
18
Government of Canada , Ministry of Law & justice, Canada, Assisted Human Reproduction Act,S.C. 2004, c. 2 ,
Assented on 2004-03-29 , available at http://laws-lois.justice.gc.ca/eng/acts/A-13.4/page-1.html, (Last visited
February 15, 2015).
19
French Civil Code (1804) Decreed 8th of March, 1803. Code Napoleon; or, the French Civil
Code. Literally Translated from the Original and Official Edition, Published at Paris, in 1804.
20
Australia, New South Wales Surrogacy Act 2010, No. 102, Part I, Preliminary, available at
<http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D2010
%20AND%20no%3D102&nohits=y>.
21
[2008] 1 FLR 177
22
Rahi Gaikwad, They need the baby, she needs the money, The Hindu, September 28, 2014,
22
upheld only such reasonable payment as reiterated above. Accordingly compensated surrogacy
agreements may be drafted mainly seeking to provide in keeping with the same providing for
legally sanctioned expenses or reimbursements.
Based on above contentions, it is humbly submitted before hon’ble court that blanket ban on
commercial surrogacy is not appropriate at all and instead of blanket ban on commercial
surrogacy, compensated surrogacy should be allowed.

3.1 INFRINGMENT OF ARTICLE 14
It is humbly submitted before the Hon’ble Court that there is a violation of Article 14 of the
Constitution.
Article 1423of the constitution of is part of the fundamental rights under part iii of the Industian
Constitution which guarantees to every citizen the right to equality; it applies the principle of
equality before the law and prohibits unreasonable discrimination between people. Under article
14 two important aspects have been included which are equality before the law and the equal
protection of the law and both play an important role. The Constitution of Industian states article
14 as follows:
“The state shall not deny to any person equality before the law or the equal
protection of the laws within the territories of India”
Available at: <http://www.thehindu.com/sunday-anchor/they-need-the-baby-she-needs-themoney/

article6453307.ece>.
23
Article 14 in The Constitution of India 1949
Equality before law The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India
17
As Per the Black’s Law Dictionary, ‘Class legislation’ is term applied to statutory enactments which divide the
people or subjects of legislation into classes, with reference either to the grant of privileges or the imposition of
burdens, upon an arbitrary, unjust, or invidious principle of division, or which, though the principle of division may
be sound and justifiable, make arbitrary discrimination between those persons or things coming within the same
class.
23
In S.G. Jaisinghani v. Union of India24 the court for the first time held that ‘absence of arbitrary
power’ as sine qua non to rule of law with confined and defined discretion, both of which are
essential facets of article 14. Rule of law requires that no person shall be subjected to harsh,
uncivilized or discriminatory treatment even when the object is the securing of paramount
exigencies of law and order25.
The Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu26, discovered a fresh
dimension of equality based on non-arbitrariness; a new concept of equality was laid down
through justice Bhagwati j., who stated that “equality is a dynamic concept with many aspects
and dimensions, and it cannot be cribbed, cabined, and confined with traditional doctrinaire
limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact, equality
and arbitration are sworn enemies. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore violative of article 14.”
The same principle was used in the landmark judgment of Maneka Gandhi v. Union of India27,
the court held that article 14 strikes at arbitrariness in state action and ensures fairness and
equality of treatment.
Further, similar viewpoint was given by justice Bhagwati j. in the case of Ramana Dayaram
Shetty v. International airport authority28.
The classification has been permitted under the article 14 till it is ‘reasonable’, but it forbids the
class legislation.
The power of reasonable classification given to the state must not be arbitrary, artificial, or
evasive and must always rest upon some real and substantial grounds. In State of West Bengal v.
Anwar Ali Sarkar29, the Supreme Court of India through Sudhir Ranjan das, j. laid down the twin
test for reasonable classification. the court held that for the classification to pass the test, two
conditions must be fulfilled:
24
1967 AIR 1427, 1967 SCR (2) 703
25
Rupinder Singh v. Union of India, AIR 1983 SC 65
26
AIR 1974 SC 555
27
AIR 1978 SC 597
28
AIR 1979 SC 1628
29
AIR 1952 SC 75
24
i. Classification must be founded on an intelligible differentia which distinguishes those that are
grouped together from others and
ii. The differentia must have a rational relation to the object sought to be achieved by the act.
The court further said that “the differentia which is the basis of the classification, and the object
of the act are distinct things and what is necessary is that there must be a nexus between them
i.e., the object of the law and the grouping”.
The object sought to be achieved by the Bill is to protect women from exploitation, to prevent
commoditization of the birth process and to stop trafficking in the market of surrogacy.
However, there seems to be no nexus between the object sought and the classification made as
by completely banning commercial surrogacy and restricting altruistic surrogacy only to married
and infertile Indian couples, the Bill has failed to provide any option of surrogacy, whether
altruistic or commercial, to homosexual couples, single persons, and foreigners. This certainly
cannot be deemed as a solution to check exploitation and trafficking in the market of surrogacy.
In fact, such provisions infringe the right to equality of the homosexuals, single intended parents
and foreigners.
By restricting surrogacy only to married couples, the Bill reinforces the majoritarian Indian
morality that condemns the idea of live-in relationship and homosexuality. It suppresses the
rights and freedom of these sections of society. Here, it is important to note that in India, live-in
relationships and homosexuality are not illegal anymore and limiting the access of
altruistic surrogacy is a clear indication of discrimination against these sections of society.
The ban runs counter to the idea of Hindu Marriage Act, 1955 and Juvenile Justice Act, 2015
that allow a single person to adopt a child while this Bill bans surrogacy for the singles. On one
hand, the law is permitting single persons to adopt a child while on the other, it is restricting the
single persons from adopting the method of surrogacy. In addition, under Central Adoption
Resource Authority (“CARA”), the foreigners are allowed to adopt a child while this Bill bans
the foreigners from employing the means of surrogacy.
25
Protection under Article 14 is available to all the persons including foreigners. There is no reason
for prohibiting them from adopting the mode of surrogacy. The only rationale behind this could
be the exploitation of the Indian surrogate mother due to unequal bargaining power.
However, this reason alone cannot be the ground for prohibiting foreigners from having a child
from an Indian surrogate mother. The only possible solution for this is to enact a well-knit
legislation to regulate the surrogacy market in India instead of banning it altogether. The
previously mentioned contradictions make the restrictions under the Bill illogical and vague.
In case of Anuj Garg & ors. V. Hotel Association of India and ors. 30, the constitutional
validity of a legislation prohibiting employment of “any man under the age of 25 years” or
“any woman” in bars, was in question in the Supreme Court. The provision was challenged
on grounds of being ultra vires Articles 14 and 15(1) of the Constitution, among others,
insofar as it acted as a prohibition on “any woman” from partaking in a particular form of
employment. Consumption of alcohol in a public space was considered by the State to be an
arena of work in which only men would be safe and accepted by society. As to Article 14,
the court held that classification when undertaken by the State must be founded on rational
criteria, prescribing a strict test to unveil protective discrimination in State action or
legislation. Herein, the interference sought by the State must be “justified in principle and
proportionate in measure” with the burden of proof being on the State. The court opined that:
“The courts task is to determine whether the measures furthered by the state in the form of
legislative mandate, to augment the legitimate aim of protecting the interests of women are
proportionate to the other bulk of well-settled gender norms such as autonomy, equality of
opportunity, right to privacy et al.”
Thus, under the ART and SR Acts as well, to further the State aim in protecting the child-
bearer from possible reproductive exploitation, a balancing act must be envisaged when
pitting safety concerns against the autonomy and privacy of stakeholders. Policy inferences
or legislating from societal conditions, majoritarian views, cultural determinants and
traditional morality impinge upon norms of equality, autonomy and privacy, among others,
and exceed legitimate State aims.
30
AIR 2008 SC 663
26
Further, it unequivocally excludes unmarried men, divorced men, widowed men, unmarried
yet cohabiting heterosexual couples, and all members of the LGBTQ+ community. To
attribute characteristics grounded in stereotypes to groups of people, on the grounds
prohibited under Article 14 as well as 15(1) is discriminatory State action and impermissible,
as per the Supreme Court’s landmark ruling in Navtej Singh Johar and Ors. V. Union of
India31
In National Legal Services Authority v. Union of India32, the SC held that Art 14 does not restrict
the word ‘person’ and its application only to male or female but also includes the people who are
neither male nor female. Section 3(e) of the Transgender Persons (Protection of Rights) Act,
2019, requires that transgender persons not be discriminated against in terms of “access to, or
provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege
opportunity dedicated to the use of the general public or customarily available to the public”.
Hence, the denial of ART services to transgender persons will violate the 2019 Act.
3.2 INFRINGEMENT OF FREEDOM OF TRADE AND COMMERCE OF

THE SURROGATE MOTHER: ARTICLE 19(1)(G)
It is humbly submitted before the Hon’ble Court that there is a violation of Article 19(1)(G) of
the Constitution.
Article 19 of the Constitution of India protects various freedoms of the citizens. These rights as
provided under Article 19 are subject to certain restrictions as provided under Article 19(2) to
Article 19(6).
Article 19(1)(g) provides freedom to practice any profession, or to carry on any occupation, trade
or business. Restriction on clause (g) of Article 19(1) is provided in Article 19(6). Article
19(1)(g) protects the interests of a surrogate mother who wants to earn money
through surrogacy and also of the doctor who practices in Assisted Reproductive Technology
(“ART”) for procreating a child through a surrogate mother. The State cannot impose an
absolute restriction on the practice of surrogacy or ART procedure. In place of imposing absolute
restriction on surrogacy, State can bring such laws, rules and regulations, which can protect the
31
AIR 2018 SC 4321
32
AIR2014 SC 1863
27
surrogate mother from exploitation and at the same time, regulate the practice
of commercial surrogacy.
Imposing an absolute ban on surrogacy in order to prevent exploitation of women is not a

solution. This restriction also does not come under the ambit of public interest, a ground given in
Article 19(6).
The expression ‘interest of the general public’ comprises of any matter, which affects the public
order, morality, health etc. It is an unclear expression and gives wide powers to the executive for
curtailing the rights given under Article 19(1)(g). The court has to see whether any
restriction on Article 19(1)(g) is in the interest of general public or not.
Banning commercial surrogacy only on the ground of morality does not seem to be correct in law
because the concept of morality is dynamic and changes with time. What was considered
immoral earlier, in those prevailing circumstances, might not be immoral in the current socio-
economic structure. This is best evidenced by the recent judgement of the Supreme Court, which
decriminalized section 377 of the Penal Code, 1860
It is bread and butter for not only surrogate mothers but also for numerous clinics and doctors
who are involved in surrogacy. In Chintaman Rao v. State of M.P.33 the court held that the
restriction imposed on a person's enjoyment of the right should not be of excessive nature
beyond what is required in the interest of the public
A blanket ban on commercial surrogacy, which harms the interests of numerous stakeholders of
this multibillion-dollar industry, cannot be justified and is excessive of what is required.
33
AIR 1951 (38) SC 118
28
PRAYER
Wherefore, in the light of facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed and implored before the Honourable Supreme Court of Indistan, that it
may be graciously pleased to adjudge and declare that –
1. Recognition the rights of other than those married and above the age of 35 years to avail of
surrogacy
2. Strike down Section 27(6) of ART act that mandates donor bank to obtain Adhar details of the
donors
3. Strike down the 4(iii)(a)(I) of the SRA Act that mandates infertile certificate which violates
right to privacy.
4. Allow single man , single woman, live in couple and LGBTQ community for surrogacy
5. Allow compensatory surrogacy within a defined legal structure and framework, among other
things
And/OR
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience
For This Act of Kindness, the Respondents Shall Duty Bound Hold Forever Pray.
All of which is most humbly prayed
Counsel of the Petitioner
29

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INTER-UNIVERISTY MOOT COURT COMPETITION

TEAM CODE: KRMUMCC - 12

INTER-UNIVERSITY MOOT COURT COMPETITION, 2022

K.R.MANGALAM UNIVERSITY, GURUGRAM, HARYANA

BEFORE THE HON’BLE HIGH COURT OF ALPHA

PUBLIC INTEREST LITIGATION (CIVIL) NO. __/__

UNDER ARTICLE 226 OF THE CONSTITUITION OF INDISTAN

UNION OF INDISTAN & ORS

ON SUBMISSION TO THE HON’BLE HIGH COURT OF ALPHA

COUNSEL APPEARING ON BEHALF OF THE PETIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

1. WHETHER THE ACT IS A VIOLATIVE OF ARTICLE 21 OF THE

1.1 INFRINGMENT OF WOMEN’S RIGHT TO MAKE REPRODUCTIVE

1.2 VIOLATION OF RIGHT TO LIVELIHOOD…………………………….16

1.3RIGHT TO PRIVACY ………………………………………………………17

2. WHETHER THE BLANKET BAN ON COMMERCIAL SURROGACY

3. WHETHER THE ACT IS VIOLATIVE OF ARTICLE 14 AND 19 OF

3.2 INFRINGEMENT OF FREEDOM OF TRADE AND COMMERCE OF

SCC Supreme Court Cases

AIR All India Report

PIL Public Interest Litigation

App. Crl Criminal Appeal

UOI Union of India

SCR Supreme Court Reports

Pg. No. Page Number

Case Laws Referred

10. K.S. Puttuswamy v. Union of India……………………………………………...18

1. WHETHER THE ACT IS A VIOLATIVE OF ARTICLE 21 OF THE

2. WHETHER THE BLANKET BAN ON COMMERCIAL SURROGACY

3. WHETHER THE ACT IS VIOLATIVE OF ARTICLE 14 AND 19 OF

1. WHETHER THE ACT IS A VIOLATIVE OF ARTICLE 21 OF THE

CONSTITUTION OF INDISTAN OR NOT?

2. WHETHER THE BLANKET BAN ON COMMERCIAL SURROGACY

3. WHETHER THE ACT IS VIOLATIVE OF ARTICLE 14 AND 19 OF

1. WHETHER THE ACT IS A VIOLATION OF ARTICLE 21 OR NOT?

1.1 INFRINGMENT OF WOMEN’S RIGHT TO MAKE REPRODUCTIVE

The three-judge bench in Sucheta Srivasata v. Chandigarh Administration5, the reproductive

1.1.1Reproductive rights are internationally recognized

C) International Conference on Population and Development, 1994. The International

1.2 VIOLATION OF RIGHT TO LIVELIHOOD

2. WHETHER THE BLANKET BAN ON COMMERCIAL SURROGACY

2.1 ABSENCE OF COMMERCIAL SURROGACY CREATE MORE

2.2 VIOLATION OF ARTICLE 23 OF INDISTAN CONSTITUTION

3. WHETHER THE ACT IS VIOLATIVE OF ARTICLE 14 AND 19 OF

3.1 INFRINGMENT OF ARTICLE 14

Available at: <http://www.thehindu.com/sunday-anchor/they-need-the-baby-she-needs-themoney/

3.2 INFRINGEMENT OF FREEDOM OF TRADE AND COMMERCE OF

Imposing an absolute ban on surrogacy in order to prevent exploitation of women is not a

Justice, Fairness, Equity and Good Conscience

All of which is most humbly prayed

Counsel of the Petitioner

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PUBLIC INTEREST LITIGATION (CIVIL) NO. /