RITU PRASAD v. UNION OF INDIA

INTRODUCTION

The Delhi High Court’s ruling in Ritu Prasad v Union of India^[1] on 9th October 2023, made by Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula posed a key legal question about surrogacy and the regulation of Assisted Reproductive Technology (ART)^[2] in India. At issue was the use of gametes from regulated sources by medically infertile couples wishing to create embryos for surrogate purposes before the Ministry of Health’s 2023 notification (G.S.R. 179(E)) prohibiting such use. To assert its authority over the Ministry’s delegated legislative authority (that is, as part of its power of strategic oversight), the court applied a proportionality test.

The right to privacy was derived from the Supreme Court of India’s decision in Puttaswamy^[3] (2017) in conjunction with the statutory purpose of any welfare benefit provided by the ART Regulation Act (2021). The “new” genetic requirements under the Ministry’s 2023 Notification ^[4]were therefore found by the court to be arbitrary, vague and indeterminate compared to the “medical infertility” definition provided in the ART Regulation Act of 2021. In addition, in confirming that surrogacy is a constitutional right rather than a privilege, the judgment allowed the Government to amend its policy in 2024 to provide access for donor gametes for medical purposes. Overall, this ruling aligns India’s ART policies more closely with global standards of reproductive and reproductive health, further strengthening individuals’ reproductive autonomy within India.

FACTS OF THE CASE

1. The decision of Ritu Prasad v. Union of India (Delhi HC, 2023) raised concerns about the legality of the prohibition against using donor eggs in surrogacy as detailed in a March 2023 notification from the Ministry (G.S.R. 179(E)).
2.  In this case, the petitioners were infertile couples with documentation from licensed physicians verifying their status who had previously obtained permission to create frozen embryos with donor eggs prior to receiving notification of the prohibition.
3. The Delhi High Court ruled that any prohibition on surrogacy for these individuals would not be enforced retroactively, thus maintaining their Constitutional Rights. The Court held that the notification was ultra vires to the Surrogacy (Regulation) Act^[5]; it was a violation of Articles 14^[6] (Equality Before the Law) and 21 (Right to Life and Privacy, Reproductive Autonomy).
4. The Court determined that the prohibition as stated is arbitrary and constitutes discrimination against Infertile couples who cannot provide their own genetic material, and further, this denial does not possess a rational biological connection to the altruistic intent of the Surrogacy Act.
5.  The Court issued an interim ruling that allowed the petitioners to engage in surrogacy under the rules in place prior to the notifications being issued and identified a conflict with the Surrogacy Act and ART Act.

The decision serves as a landmark precedent for the application of Puttaswamy to ART and will provide a new Amendment in 2024 for the use of donor gametes when medically warranted. This decision changes the status of Surrogacy from being something that is discretionary (a ‘privileged’ service) to being a constitutionally protected reproductive right and brings India in line with the international community.

 ISSUES

The Court outlined four related issues that examined the legality and constitutionality of the notification:

1. Ultra Vires and Colourable Legislation: Whether G.S.R. 179(E), which was issued under Section 50 of the Surrogacy Act (a rule-making power)^[7], exceeded its mandate of Section 4^[8] (infertile couples based on medical indications) and, therefore, was not authorised and, therefore, was a de facto amendment of the parent Act.
2. Article 14 Equality: Whether the ban created an arbitrary classification of infertile couples based on who produced gametes vs. who used donors, and whether this classification had a sound basis and a rational connection to the altruistic surrogacy goal of the Act.
3. Article 21 Reproductive Autonomy: Whether applying retrospective regulations infringes upon people’s privacy rights, decision-making autonomy, and the right to be a parent (as found in the Puttaswamy judgments and their subsequent cases) concerning certification/creation of embryos.
4.  Statutory Conflict: There is a need to determine how to resolve potential conflicts between the definition of infertility contained in Section 2(j) of the ART Act (which allows for donor-assisted IVF after “failure to achieve clinical pregnancy” for 1 year following unprotected sexual relations)^[9] and relevant provisions of the Surrogacy Act.

As to all of these matters, the focus was on proportionality: did the ban serve a legitimate purpose (protection of surrogates and maintaining genetic links between the child and the donor), and was there a sufficiently tailored means of achieving that goal, or was the ban too paternalistic?

ARGUMENTS PRESENTED

1. Contentions Made by Petitioners: The Act’s benevolent purpose, which allowed childless couples to become parents through regulated surrogacy, had been “frustrated” by the notification, as it imposed genetic preconditions that were not enacted by legislation. The entitlement to a child arises through Medical clearance and Embryo fertilisation. A retrospective divestment of that right was tantamount to an unlawful deprivation under Article 21, as was the decision in Suchita Srivastava^[10] with regard to the fundamental freedom of choice in reproductive matters. In respect of Article 14, the notification was irrational: only 10-15% of infertility cases are due to gamete failure; however, a medical handicap is penalised for no reason, at least not based on evidence or proof of harm to the surrogate. Before 2021, Rule 7(1)(d)^[11] allowed Gamete Donors; this notification was a manifestly arbitrary reversal of prior policy, and the Union used Section 50(ze)’s broad wording to circumvent the intent of Parliament^[12].
2. Union of India’s defence: Surrogacy is a “statutory privilege;” it is not a constitutional right. Section 50^[13] of the Act empowers the Government to regulate the entire process of Surrogacy (including gamete sourcing), to retain the altruistic nature of Surrogacy and prevent the proliferation of the commercial donor markets which existed before the Act. The genetic screening restrictions imposed by the notification were meant to maintain “family integrity” and, therefore, were aligned with both the Preamble and the provisions of the Act, which prohibit the exploitation of Surrogate Mothers. The notification does not violate the Constitution, as the restrictions imposed on those seeking Surrogacy are reasonable classifications in furtherance of the public interest.

JUDGMENT AND RATIO DECIDENDI

1. On October 9, 2023, the court decided to allow the applicants of medical boards; therefore, their pre-notification applications would be processed under G.S.R. 179(E) as prospectively applicable only to the petitioners. Core Ratio: The Constitution vests a constitutional right to be the biological
2. parent by approving embryos born from procedures of intracytoplasmic sperm injection under Article 21. If the notification were applied retroactively, this would constitute an unlawful, unjust deprivation of the constitutional rights of the petitioners.
3. Article 14: The notification would violate this article because it does not have a rational basis in law or research to discriminate between “gamete competent” and “gamete incompetent” infertile couples.
4. The notification represents a fundamental change in policy from that set forth in the ART Act regarding medical infertility and, therefore, is prima facie ultra vires of Section 50 of the ART Act. Vires on the notification will be determined finally at a later date, but at this time, the prima facie arguments for the petitioners appear to be favoured.

OBITER DICTA

According to the bench, the amendment’s change to genetics contradicts the statute’s lack of mention of this term and classifies “infertility” as a genetic defect rather than a clinical condition. The bench also finds that the arbitrary disqualifications of infertility applicants interfere with the intended purpose of the statutes to ensure equal treatment with respect to access. Finally, the bench acknowledged that it was possible to establish a broader invalidity on its face based upon merit.

CRITICAL ANALYSIS

1. Doctrine Evolution: IVF embryos treated by Ritu Prasad as vested interests under Article 21, extending privacy to procreative autonomy per Puttaswamy. It echoes Suchita Srivastava (foetal option) decision and X & Anr. v Principal Secretary^[14] (Abortion rights) case; and the proportionality principle of Article 14 applied in the case of Navtej Johar.^[15]
2. Tension With Legislation: Highlights Limitations of Section 50 of Re Delhi Laws Act, 1951^[16]; Form 2 ban is colourable in A.K. Gopalan^[17], thus the ART Act donor provision prevails.
3. Global Comparisons: Prior to Ritu Prasad, Indian case law regarding embryo genetics was idiosyncratic; In the UK, HFEA donor permits fulfil screening; Canada AHRA allows altruistic surrogacy; California approves gestational contracts routinely. After 2024, India will conform to rights oversight similar to ECHR’s Pretty v UK^[18].
4. Critique of Policy: Assists 15% of Oocyte cases, thus initiating an amendment in 2024. Drawback: Delaying risk of appeal, not including surrogate risk factor. Move towards CEDAW equity^[19], WHO Consent^[20], and Supriyo (2023)^[21] challenges.

CONCLUSION

The decision in Ritu Prasad v Union of India changes how we view surrogacy under law and makes it a legal right under Article 21 if a doctor has certified that the individual seeking surrogacy is the biological parent of the child being born. This was done by using the test of proportionality to limit an overreach/abuse of delegation, which allows the Surrogacy Act and ART Act to be reconciled with the right to liberty and will bring about meaningful changes to the laws governing surrogacy and ART in India in 2024. The positives of this ruling include immediate equity/equality and the ability for the doctrine to expand; thus, these will have a greater impact than the uncertainty that exists following this ruling. This ruling demonstrates a leaf of intolerance for any kind of moralistic barrier when it comes to the issue of reproductive justice in India, and India appears to be moving toward a place that promotes the kind of individualism and autonomy that is prevalent in most western democracies, while simultaneously urging the Indian Government to create a regulatory framework for an ever-changing technological environment in the field of biotechnology.

[1] Ritu Prasad v Union of India Delhi HC W.P.(C) 6020/2023.

[2] Assisted Reproductive Technology (Regulation) Act 2021 (Act 42 of 2021).

[3] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.

[4] G.S.R. 179(E), Ministry of Health and Family Welfare, ‘Surrogacy (Regulation) Amendment Rules, 2023’ (14 March 2023) Gazette of India.

[5] Surrogacy (Regulation) Act 2021 (Act 47 of 2021).

[6] Constitution of India, art 14; Constitution of India, art 21.

[7] Surrogacy (Regulation) Act 2021, s 50.

[8] Surrogacy (Regulation) Act 2021, s 4.

[9] Assisted Reproductive Technology (Regulation) Act 2021, s 2(j)

[10] Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.

[11] Assisted Reproductive Technology (Regulation) Rules 2022, r 7(1)(d).

[12] Assisted Reproductive Technology (Regulation) Act 2021, s 50(ze).

[13] Assisted Reproductive Technology (Regulation) Act 2021, s 50.

[14] X v Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022) SCC OnLine SC 1321.

[15] Navtej Singh Johar v Union of India (2018) 10 SCC 1

[16] In re Delhi Laws Act, 1951, s 50 AIR 1951 SC 332

[17] A.K. Gopalan v State of Madras AIR 1950 SC 27.

[18] Pretty v United Kingdom (Application no 2346/02) ECHR 2002-III.

[19] Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW), art 1.

[20] World Health Organisation, Operational Guidelines for Ethics Committees that Review Biomedical Research (2000) 11–13

[21] Supriya Chakraborty v Union of India 2023 INSC 920.