The Punjab and Haryana High Court dismissed the Writ Application filed by a Sudanese National praying to allow surrogacy in India for single parents. The basis of the Writ was that Ministry of Home Affairs had issued a notification issued a notification addressing to the Ministry of External Affairs stating that foreigner wishing to take up surrogacy in India must be a couple married for atleast a period of two years. The petitioner herein Shihabeldin had prayed that surrogacy must be allowed for single parents as well. The Bench constituing HON’BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN PALLI dismissed the plea preliminarily stating that the ART Bill is pending and the Court cannot void the vacuum in the absence of law.
We are, thus, confronted with a situation where undoubtedly there is a complex issue at hand of surrogacy qua single parents who are foreign citizens. It cannot be lost site of that there would have to be checks and balances in such a situation. As to what would be the final version of the Act and what are the checks and balances would in turn depend on the final proposal of the Cabinet which would in turn have to be placed before the House and only thereafter would it be known. What had persuaded us to intervene in this matter was the plea of the learned counsel for the petitioner that earlier the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (Annexure P-4) were in force. There appeared to be some conflict between the guidelines issued under the Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the guidelines of the ICMR. However, the conflict for the interim period is resolved by all the respondents being in unison that in the interregnum period the arrangement which would prevail would not permit the single parent foreign citizen surrogacy. The final version would only emerge as stated aforesaid after the Parliament debates on the law. In view of the aforesaid position, we are not inclined to issue a writ in favour of the petitioner, a foreign citizen, who seeks single parent surrogacy as the law in this behalf itself is sought to be enacted and it is at a final stage. This is not a matter where the stated vacuum can be filled in by the Court in the interregnum period, moreso when there is now a unanimous view of the different Ministries of the Government of India as to what should prevail as an interim arrangement. The petition is accordingly disposed of with a hope that the final view would be available with the constitution of the new House which would have the benefit of debating the matters pertaining to the law post the Cabinet having scrutinized the same
In my personal opinion, pending of the ART BIll before the Parliament certainly is not a ground for the dismissal of a Writ. The Court should have appreciated the situation as it is existing today instead of merely waiting for the law to come into force. The Court should have gone into the merits of the case before dismissing the same. The ART Bill has been pending to be passed for a very long time.
The judgment of the Punjab and Haryana High Court make surrogacy in India still inaccessible for single man or woman and gay parents to take up surrogacy in India.