Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of XYZ & ABC v. Union of India has held that reproductive health is a facet of personal liberty under the provisions of Article 21 of the Constitution of India, 1950 (COI).

What was the Background of XYZ & ABC v. Union of India Case?

• In this case, the petitioners are husband and wife who got married on 29th April 2013.
• The Petitioners contended that they could not achieve parenthood due to serious medical issues suffered by the wife. Between the period of 2011 to 2023, the wife underwent surgeries.
• The Petitioners intended to take recourse to the procedure of surrogacy under the provisions of the Surrogacy (Regulation) Act, 2021 and under the Rules framed thereunder.
• The Central Government amended Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022 which prohibit donor gametes.
• The petitioners contend that prescribing of such condition in the Rules is illegal in as much as such condition would be violative of and/or in-congruent to the provisions of the Surrogacy Act.
• Aggrieved by this, a petition has been filed before the Bombay High Court which was later allowed by the Court.

What were the Court’s Observations?

• Justices GS Kulkarni and Firdosh Pooniwala observed that we are of the clear opinion that if the protection as prayed for is not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy.
• It was further stated that reproductive health is a facet of personal liberty under Article 21 of COI.

What are the Relevant Legal Provisions Involved in it?

Article 21 of the COI

About:

• This Article states that no person shall be deprived of his life or personal liberty except according to a procedure established by law.
• This fundamental right is available to every person, citizens and foreigners alike.
• The Supreme Court of India has described this right as the Heart of Fundamental Rights.
• This right has been provided against the State only.
• Article 21 secures two rights:
  • Right to life
  • Right to personal liberty

Case Laws:

• In Francis Coralie Mullin v. The Administrator (1981), Justice P. Bhagwati had said that Article 21 of the COI embodies a constitutional value of supreme importance in a democratic society
• In Kharak Singh v. State of Uttar Pradesh (1963), the Supreme Court held that by the term life, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

Surrogacy (Regulation) Act, 2021

• This Act came into force on 25th January 2021.
• Under this Act, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
• It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
• The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

Surrogacy (Regulation) Rules, 2022

• This provides for the form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic.