11 September 2024

1. Surrogate Mothers likely to be Paid Anyway, Better to Have a System to Regulate: Supreme Court in Challenge to Ban on Commercial Surrogacy

While hearing the pleas challenging certain surrogacy laws, the Supreme Court today emphasized the need of safeguard the interests of surrogate mothers, even though commercial surrogacy is prohibited in India.

A bench comprising Justice BV Nagarathna and Justice N Kotiswar Singh was hearing a batch of petitions pertaining to the surrogacy regulation act and the assisted reproductive technology (regulation) act, 2021 when it observed that there is a need for a system, so that no woman is exploited.

There can be a database so that the same lady is not exploited. A system must be there. Nobody is saying its bad idea, but at the same time, it can be badly used orally said Justice Nagarathna.

On the aspect of compensation, the judge added that the court will consider the aspect of a designated authority disbursing funds to surrogate mothers, instead of the intending couple paying them directly. You don’t have to pay directly to the lady, the department pays you will have to deposit.

Additional Solicitor General Aishwarya Bhati, on behalf of the Union, informed the Court that at present, the laws bar commercial surrogacy and only altruistic surrogacy is allowed. However, she sought time to come up with instructions, adding, "If there are any suggestions, we are willing to take. This is an Act which has specifically come and banning of commercial surrogacy was one of the prime objectives we wanted to have. Otherwise, the prism with which the experts have looked at it is the welfare of the child. It's not the rights of intending couples or individuals. It is the rights of the child ultimately who is brought into the world".

Senior Advocate Nakul Dewan, appearing for the petitioners, argued that while keeping the spirit of "altruism" intact, some sort of compensation needs to be provided to surrogate mothers, as the Act and Rules only cover medical expenses and insurance. In response to a court query, he informed that a woman can only be a surrogate mother once.

The senior counsel further stated that putting a mechanism in place would also assist intending couples who are unable to find a surrogate. "Instead of having things which go underground, if a mechanism is set out, then certainly I think we can regulate it better. Perhaps in cases where [people] are unable to find a surrogate, they may be able to find a surrogate", he said.

Advocate Mohini Priya supplemented Dewan's submissions by suggesting that the government can work out an upper and lower limit for compensation of surrogate mothers, depending on whether they are carrying twins or single child, etc. However, the bench was of the view that the concerned government department can look into that.

Acknowledging Dewan's submission, Justice Nagarathna said that there can be something like a "surrogate bank". "The plan will not really work in the sense they are still going to be paid. Atleast we can regulate it", the judge added.

At one point, it was also noted that the effect of the existing Act(s) on intending couples who have already started the process will have to be considered.

The Court will hear the matter on November 5 and the parties have been asked to file their submissions in the meanwhile.

Background

The lead petition in the matter has been filed by an infertility specialist from Chennai, Dr. Arun Muthuvel. Besides highlighting various contradictions in the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, the petitioner points out that the twin legislations inaugurated a legal regime that was discriminatory and violative of the constitutional rights of privacy and reproductive autonomy.

“The impugned acts through their discriminatory, exclusionary, and arbitrary nature, deny agency and autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of the ideal family that restricts reproductive rights,” the petition states.

After the top court agreed to hear the challenge against the two Acts in September last year, several other petitions and applications were filed raising similar questions, such as whether it was constitutional to exclude unmarried women from the ambit of the Surrogacy Act, or whether limiting the number of donations made by an oocyte donor under the ART Act would amount to "unscientific and irrational restrictions".

Case- Arun Muthuvel vs. Union of India

2. When Dowry Demand isn’t established, Conviction for Dowry Death under Section 304B IPC Unsustainable: Supreme Court

The Supreme Court set aside the conviction for dowry death (under section 304-B of IPC) after noting that the prosecution was not able to prove that the deceased wife was subjected to cruelty or harassment by the husband soon before her death in connection with the demand of dowry.

The court set aside the convictions of the husband, sister-in-law and the mother-in-law of the deceased. The trial court had sentenced them to undergo life imprisonment, which the High Court also approved.

Setting aside the conviction, the Supreme Court stated that unless it was proved that the alleged cruelty or harassment faced by the deceased wife from her husband and in-laws was in connection with the demand of dowry, then conviction under section 304-B of IPC would not be sustainable.

The bench comprising Justice Sudhanshu Dhulia and Justice JB Pardiwala relied on the judgment in the case of Rajinder Singh vs. State of Punjab (2015), where the court had discussed the ingredients of section 304B of IPC as follows:

There are for such ingredients and they are said to be-

1. Death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances
2. Such death must have occurred within seven years of her marriage
3. Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband
4. Such cruelty or harassment must be in connection with the demand for dowry.

Upon perusing the material placed on record especially the testimonies of the prosecution witnesses, the Court found that "these witnesses did not state that such cruelty and harassment was in connection with the demand for dowry."

"With respect to the demand for dowry, they have just made some general statements which are not sufficient to convict the appellants under section 304B of IPC", the court added.

The court said that the trial court and High Court committed an error while raising a presumption of dowry death under Section 113B of the Indian Evidence Act, 1982.

"Trial Court raised a presumption under section 113B of Evidence Act to convict the appellants under section 304B of IPC. The High Court did not go into the question of whether the trial court was right in relying upon section 113B of the Evidence Act."

The Court stated that the mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A of IPC unless the prosecution has not proved that the deceased was subjected to cruelty soon before her death in connection with the demand of dowry. (Reference was made to Charan Singh @ Charanjit Singh v. State of Uttarakhand, 2023.

"Hence, we are of the opinion that this is not a case of dowry death under Section 304B of the Indian Penal Code. PW-1 and PW-3 had only stated that deceased used to tell them about her torture. PW-4 (mother of the deceased) did not speak about any demand of dowry after marriage. Moreover, this witness had said that appellant no.2 used to assault her deceased daughter as the deceased had objections to the illicit relation of appellant no.2 with another woman. PW-16, who is the cousin of the deceased, had deposed in court almost a year after the testimony of PW-1, 3 & 4 and his deposition regarding the physical assault of the deceased in connection with the demand of dowry is also not believable. Considering the aforesaid, in our view, the trial court erred in raising a presumption under Section 113B of the Indian Evidence Act, even though the demand for dowry was not established.", the Court held.

Since the case of abetment of suicide under Section 306 of IPC and cruelty under Section 498A of IPC was made out against the husband, therefore the conviction under these two provisions was upheld; however, the conviction under Section 304B of IPC was set aside as no case was made out by the prosecution for dowry death. With respect to the offences under Section 306 and 498A, the Court convict the appellant No. 2(husband) and sentenced him to undergo three years of rigorous imprisonment and a fine of Rs. 25000/- on each count.

Case- Chabi Karmakar & Ors. Vs. The State of west Bengal