Petitioner-Jurist Jeremy Bentham

TEAM - JURIST JEREMY BENTHAM
GOVERNMENT LAW COLLEGE, CHENGALPATTU

STATE MOOT (ENGLISH) COMPETITION-2023
IN THE HON’BLE SUPREME COURT OF BINDIA
IN THE MATTER OF:

W.P. No……. /2023
NEPENTHES & ORS …. PETITIONER

V.
UNION OF BINDIA & ANR …. RESPONDENT
IN CLUBED WITH
ANIL AND ANKRUTA …………………………………………………PETITIONER
NEELAM…………………………………………………………………RESPONDENT
IN CLUBED WITH
SURAJ AND NINDHYA………………………………………………. PETITIONER
UNION OF BINDIA……………………………………………………. RESPONDENT
IN CLUBED WITH
VIRUSH AND DHROOP……………………………………………… PETITIONER
UNION OF BINDIA……………………………………………………. RESPONDENT
UPON SUBMISSION TO THE HONOURABLE SUPREME COURT OF BINDIA
MEMORIAL ON BEHALF OF THE PETITIONER

GOVERNMENT LAW COLLEGE, CHENGALPATTU STATE MOOT (ENGLISH) COMPETITION.
TABLE OF CONTENTS
List of Abbreviations 3
Index of Authorities 4-5
• Table of Cases 4
• Statutes 5
• Books 5
Statement of Jurisdiction 6
Statement of Facts 7
Statement of Issues 8
Summary of Arguments 9
Arguments Advanced 10-34
Issue-I: Whether the provisions of The Surrogacy (Regulation) Act, 2021 to the 10-15
extent of prohibiting commercial surrogacy and allowing altruistic surrogacy is
constitutionally valid?
Issue-II: Whether the provisions of The Surrogacy (Regulation) Act, 2021 16-23
expands its parameter in prohibiting unmarried couples, live-in couples and same-
sex couples from availing surrogacy is constitutionally valid?
Issue-III: Whether the age limit prescribed for men and women in the said Act 24-26
reinforced the patriarchal values by withering away the Laws of equality?
Issue-IV: Whether the vacuum in The Surrogacy (Regulation) Act, 2021 had 26-34
incapacitated and deserted the rights of incarcerated person to have a child of their
own?
Prayer 35
MEMORANDUM ON BEHALF OF PETITIONER 2

LIST OF ABBREVIATIONS
& And
AIR All India Report
Anr. Another
ART Act Assisted Reproductive Technology (Regulation) Act
COB Constitution of Bindia
Cri LJ / Cr. LJ Criminal Law Journal
Hon’ble Honorable
LQBTI+ Lesbian, Gay,Bisexual,Transgender,Intersex,..
NALSA National Legal Service Authority
Ors. Others
PLJR Patna Law Journal Reports
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
SRA Act Surrogacy (Regulation) Act
St. State
UDHR Universal Declaration of Human Rights
u/s Under Section
v. Versus

INDEX OF AUTHORITIES
TABLE OF CASES:
1. B. K. Parthasarthi v. Government of Andhra Pradesh, 2000 (1) ALD 199, 1999 (5)
ALT 71
2. Badri Prasad V. Dy. Director of Consolidation 1978 AIR 1557, 1979 SCR(1)
3. Bandhua Mukti Morcha v. Union of India, 1984 AIR 802, 1984 SCR (2) 67
4. D. Bhuvan Mohan Patnaik and Ors v. State of Andhra Pradesh & Ors AIR 1974 SC
2092
5. D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469
6. Devika Biswas v. Union of India (2016) 10 SCC 726.
7. Francis Coralie Mulin v. the Administrator,Union Territory of Delhi AIR 1981 SCC
746
8. Gobind v State of Madhya Pradesh 1975 2 SCC 148
9. K.S. Puttaswamy v. Union of India(2017) 10 SCC 1, 83
10. Kallakkurichi Taluk v. State of Tamil Nadu 2013,
11. Kharak Singh v. State of Uttar Pradesh 1963 AIR 1295, 1964 SCR (1) 332
12. Maneka Gandhi v. Union Of India AIR 1978 SC 597
13. Manji Yamada v. Union of India. (2008) 13 SCC 518.
14. Md. Faruk v. State of Madhya Pradesh 1970 AIR 93,1970SCR(1)156
15. MG Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264: (2001) 2 SCC 666.
16. Modern Dental College vs State Of MP AIR 2016
17. Motor general traders v state of A.P.,(1984)1 SCC 222,229: AIR 1984 SC 121
18. Mrs. Mehraj v. State rep by its secretary & ors, 2022
19. NALSA v. Union Of India, AIR 2014 SC 1863
20. Nand Lal v. State,Dept. of Home, Rajasthan,Jaipur.&Ors.2022
21. National Legal Services Authority v. Union of India 2014 5 SCC438
22. Navtej Singh Johar v. Union of India (2018) 10 SCC 1, para 461.
23. Neha v.State of Haryana & Ors, CRWP-2526-2021
24. Olga tellis v. Bombay municipal corp, AIR 1986 SC 180
25. P.Thangamarimuthu vs Tamil Nadu State Transport (2006) IILLJ 208 Mad, (2006) 1
MLJ 452)

26. Rajeeta Patel v. State of Bihar and others, 2020 (4) PLJR 669.
27. S. Khushboo v. Kanniammal,(2010) 5 SCC 600
28. S.P.S. Balasubramanyam v. Suruttayan Alias Andali AIR 1992 SC 756,
29. Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, para 84.
30. Smt. Saroj Rani v. Sudharshan kumar chandha, AIR 1984 SC 1562
31. State of Andhra Pradesh (v) Mc Dowell And co., AIR 1996 SC 1627.
32. State of Maharashtra v. Indian Hotel and Restaurants Association 2013
33. State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75,
34. Suchita Srivastava v. Chandigarh Admn (2009) SCC1, para 22
35. Suresh Kumar Koushal v. Naz Foundation ,2013
36. Tulsa V. Durghatiya, 2008,
37. Union of India v. N.S. Rathnam, (2015) 10 SCC 681, para 18
38. Varsha Kapoor V. Union of India and Ors,2010
STATUTES:
1. THE CONSTITUTION OF INDIA,1950

2. THE SURROGACY (REGULATION) ACT, 2021
3. THE ASSISTED REPRODUCTIVE TECHONOLOGY (REGULATION) ACT, 2021
4. THE PRISONS ACT, 1894
BOOKS:
1. CONSTITUTION OF INDIA – SHUKLA

2. CONSTITUTION OF INDIA - M.P. JAIN
3. MEDICAL JURISPRUDENCE & TOXICOLOGY - MODI

STATEMENT OF JURISDICTION
Nepenthes, an NGO approached Supreme Court of Bindia filing Public Interest Litigation
under Art. 32 of Bindian Constitution 1950.
Anil and Ankruta, approached High Court of Mica claiming custody of child under Art. 226 of
Bindian Constitution 1950.
Suraj and Nindhya, approached High Court of Tina under Art. 226 of Bindian Constitution
1950 questioning the Surrogacy (Regulation) Act 2021 & Order 38(7) of Supreme Court Rules,
2013.
Virush and Dhroop, approached High Court of Oria under Art. 226 of Bindian Constitution
challenging the Surrogacy (Regulation) Act 2021 & Order 38(7) of Supreme Court Rules,2013
The Supreme Court of Bindia have power to club the multiple relevant cases under Art. 139A
of Bindian Constitution and Order 40(1) of Supreme Court Rules 2013.
So, these cases listed for the hearing before the Hon’ble Supreme Court of Bindia.

STATEMENT OF FACTS
Union of Bindia is a country there is a rapid and tremendous growth of science and technology.
The country has history of exponents in the field of medicine dentistry obstetrics and
gynecology. In the fast-moving world, the dream of having a child has turned to be a day dream
for many couples. Surrogacy is being a boon for such couples to develop their families.
Anil and Ankurta was in live in relationship for a very long period. Both where IT professionals
because of their stressful job their wishes to have a child ended up in vain. so, they found
Neelam aged 33 to be a surrogate mother by paying her 2 lakhs for her daily expenses. After
delivery Neelam refuses to give the custody of child to the biological parent Anil and Ankruta.
Suraj and Nindhya were married, aged 60 and 50 respectively. Couple did not conceive owing
to weak and deficient ovary syndrome. Unfortunately, her husband was arrested on April 2020
and convicted for 10 years imprisonment. she now wants to have baby through surrogacy and
she made an application but it was rejected by the concerned authorities.
Virush and Dhroop, gay couple approached the Hon'ble High Court of Oria contending that the
right to marry a person of one's own choice and this right as it extends to same-sex couple
extends to them as well. Moreover, the couple wishes for that have to their desires of extending
their families by having a child of their own is not such a Taboo and they approached to the
Court challenging the respective provisions of Surrogacy Act which only covers to the married
couple of opposite sex.
Nepenthes, an NGO strongly criticized the Act that women are treated with no salutations for
them being a surrogate mother without any monetary aid and plainly they were treated as child
bearing machines despite their work. The Act further has woman’s age scale criteria beyond
which they cannot be surrogate and in furtherance their right to privacy is invaded. It apparently
withered out its protection to same–sex couples etc.
NGO approached Hon’ble Supreme Court of Bindia filing Public Interest Litigation that there
are discriminatory and restrictive classification of persons under the Act, makes it violative of
the basic structure of the Constitution and furthermore the personal decision of birth of baby
through surrogacy is a right of guaranteed reproductive autonomy and the Act poses an
arbitrary restriction on the rights of woman.

STATEMENT OF ISSUES
ISSUE I:
Whether the provisions of The Surrogacy (Regulation) Act, 2021 to the extent of
prohibiting commercial surrogacy and allowing altruistic surrogacy is Constitutionally valid?
ISSUE II:
Whether the provisions of The Surrogacy (Regulation) Act, 2021 expands its parameter
in prohibiting unmarried couples, live-in couples and same-sex couples from availing
surrogacy is Constitutionally valid?
ISSUE III:
Whether the age limit prescribed for men and women in the said Act reinforced the
patriarchal values by withering away the Laws of equality?
ISSUE IV:
Whether the vaccum in The Surrogacy (Regulation) Act, 2021 had incapacitated and
deserted the rights of incarcerated person to have a child of their own?

SUMMARY OF ARGUMENTS
ISSUE I: Whether the provisions of The Surrogacy (Regulation) Act, 2021 to the extent
of prohibiting commercial surrogacy and allowing altruistic surrogacy is constitutionally
valid?
It is humbly submitted that the provisions of The Surrogacy (Regulation) Act, 2021 to
the extent of prohibiting commercial surrogacy in Sec 4 (ii)(C) and allowing altruistic
surrogacy only in Sec 4(ii)(b) is not Constitutionally valid.
ISSUE II: Whether the provisions of The Surrogacy (Regulation) Act, 2021 expands its
parameter in prohibiting unmarried couples, live-in couples and same-sex couples from
availing surrogacy is Constitutionally valid?
It is most humbly submitted before the Hon’ble Court that the Sec 2(1)(h) of The
Surrogacy (Regulation) Act, 2021 expands its parameter in prohibiting unmarried couples, live-
in couples and same-sex couples from availing surrogacy is not constitutionally valid and
violates Art. 14, 15(1) and 21 of Bindian Constitution.
ISSUE III: Whether the age limit prescribed for men and women in the said Act
reinforced the patriarchal values by withering away the Laws of equality?
It is humbly submitted before this honourable Bindia bench that The Surrogacy
(Regulation) Act, 2021 are in contravention of Art. 14, 15(1), and 21 of the Constitution
through their discriminatory, exclusionary, and arbitrary in nature.
ISSUE IV: Whether the vacuum in The Surrogacy (Regulation) Act, 2021 had
incapacitated and deserted the rights of incarcerated person to have a child of their own?
It is humbly submitted that the vacuum in the surrogacy (Regulation) Act, 2021 had
incapacitated and deserted the rights of incarcerated person to have a child of their own. There
is no express proviso regarding the rights of incarcerated person to have a child of their own in
the surrogacy (Regulation) Act, 2021.

ARGUMENTS ADVANCED
ISSUE I: Whether the provisions of The Surrogacy (Regulation) Act, 2021 to the extent
of prohibiting commercial surrogacy and allowing altruistic surrogacy is constitutionally
valid?
It is humbly submitted that the provisions of The Surrogacy (Regulation) Act, 2021 to the
extent of prohibiting commercial surrogacy and allowing altruistic surrogacy is not
constitutionally valid.
SURROGACY IS A BOON TO THE SOCIETY:
A woman is respected as a wife only if she is mother of a child, so that her husband's
masculinity and sexual potency is proved and the lineage continues. The parents construct the
child biologically, while the child constructs the parents socially. The problem however arises
when the parents are unable to construct the child through the conventional biological means.
Infertility is seen as a major problem as kinship and family ties are dependent on progeny.
Herein surrogacy comes as a supreme savior. Infertility is an issue escalating in modern society.
Couples who are not able to conceive a child can opt for surrogacy.
Surrogacy is not a norm known only to the present society but it has been practiced throughout
history in some form or the other, be it a reference of Gandhari from Mahabharata who gave
birth to a mole which consisted of many cells or Devki bearing her seventh child through
embryo transfer.
“Everybody is benefited by this, the doctors who are involved, the couples who cannot have
their own children, and women like us who cannot earn enough to feed our own children.” -
Kavita, Indian Surrogate
SURROGACY ACT IS A LAW WITH A FLAW
Surrogacy is the process wherein a woman bears a child for another individual or couple who,
after birth, become the parent(s) of the child.
The Act recognizes only altruistic surrogacy in Sec 4 (ii) (b) of The Surrogacy (Regulation)
Act,2021, meaning no remuneration paid to the surrogate apart from expenses that might be
prescribed or incurred due to insurance coverage or medical expenditure. Altruistic surrogacy

within the family is flawed as a concept, loaded with patriarchal control over the reproductive
choices of a woman, and going against the core of the right to privacy and the right to
reproduction, both of which are cherished fundamental rights. The emotional exploitation of
the ‘altruistic surrogate’ within the family can cause greater havoc and interfere with their
reproductive rights and health.
The commercial aspect of surrogacy provided a source of psychological detachment of the

surrogate mother from the newborn and reinforce that it is the intending couple or woman who
are the natural and biological parents. The element of altruism –with genetic ties involved —
will make it difficult for the surrogate to remove herself from the society of the child.
VIOLATION OF FUNDAMENTAL RIGHTS
Firstly, the prohibition of commercial surrogacy u/r Sec 4 (ii) (c) of The Surrogacy (Regulation)
Act, 2021 violates the “right of livelihood” and “right to reproductive autonomy” enshrined
under the broad framework of Article 21 of the Constitution. The ban on commercial surrogacy
threatens the livelihood of many poor women in the country who have been able to educate
their children, establish businesses, and financially support their families through surrogacy.
The number of such women, many of whom are sole breadwinners, is estimated to be more
than 100,000.
1.1 RIGHT TO LIVELIHOOD
The right to livelihood of the women have not been protected through this Act. The Article 21
of the constitution states that,
“No person shall be deprived of his life and liberty except according to the procedure
established by the law”
The right to life in Art 21 includes right to livelihood. The court held that the right to livelihood
is included in the right to life because no person can live without the means of living, that is
means of livelihood. Many surrogate mothers is given a good amount of money which she can
never dream of earning by any other means. The right to livelihood1 of the women who wish
to become a surrogate mother which have been as guaranteed u/r Art 21 of the constitution
been violated on account of the arbitrary action of the state. Art 21 protects "the right to
livelihood as an integral facet of right to life"2. The amount she gets is equal to ten years salary
1
Olga tellis v. Bombay municipal corp, AIR 1986 SC 180
2
P.Thangamarimuthu vs Tamil Nadu State Transport (2006) IILLJ 208 Mad, (2006) 1 MLJ 452)

of her husband in rural Bindia. Two-thirds of people in Bindia live in poverty: 68.8% of the
Bindia population lives on less than $2 a day. Over 30% even have less than $1.25 per day
available - they are considered extremely poor. This makes the Bindia subcontinent one of the
poorest countries in the world; women and children, the weakest members of Bindia society,
suffer most. The method of commercial surrogacy provides life to the women who is
economically deprived in the society.
1.2 RIGHT TO REPRODUCTIVE AUTONOMY
“Women have a right to control their own bodies and make their own reproductive
choices”
In the commercial surrogacy context, complete bans or disproportionate restrictions may

undermine women’s reproductive choices and health.
Right to liberty includes right to reproductive. In B. K. Parthasarthi v. Government of Andhra

Pradesh 3, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an
individual as a facet of his “right to privacy” As being a liberalistic country, the right to
reproduce is their personal choice and involvement of government is just a violation of privacy.
The right to reproduce of child on what mode is up to the desire of the couple. Women have a
right to control their own bodies and make their own reproductive choices. Decisions to become
pregnant, donate an egg, terminate a pregnancy (under some circumstances), or avoid a
pregnancy fall within women’s rights to make autonomous choices about their own bodies.
In Puttuswamy v Union of India 4, a nine-judge bench of the Supreme Court of India expressly
affirmed the centrality of decisional autonomy in any discourse on privacy. The judgment
recognized sexual and reproductive autonomy as fundamental choices protected by the right to
privacy and a fundamental right to procreate or to abstain from procreating through the use of
contraceptives.
Gobind v. State of M.P5and Kharak Singh v. State of U.P.6 the right to privacy has been
identified as a constitutionally protected right, being a facet of Article 21 of the Constitution.
The personal decision of a single person about the birth of a baby through surrogacy is called
3
In B. K. Parthasarthi v. Government of Andhra Pradesh 2000 (1) ALD 199, 1999 (5) ALT 71
4
Puttuswamy v Union of India 2017
5
Gobind v State of MP 1975 2 SCC 148
6
1963 AIR 1295, 1964 SCR (1) 332

“the right of reproductive autonomy” which can be inferred to be a facet of the right of privacy
guaranteed under Article 21 of the Constitution.
Further, the Supreme Court has interpreted the right to reproductive autonomy to mean that the
parents have the prerogative to choose the mode of parenthood, either naturally or through
surrogacy in this case. Normatively and constitutionally, the method of procreation and
parenthood lies outside the domain of the State, and any interference in this choice will warrant
an infringement of this Fundamental Right.
Judicial precedent is, therefore, abundantly clear that the Constitution protects and safeguards
reproductive choices as part of the individual’s inalienable right of personal liberty.
1.2.1 THE RIGHT TO PROCREATION AS A FUNDAMENTAL RIGHT
The Right to procreate and to found a family is a fundamental right. It is a part of the
reproductive autonomy guaranteed to every individual. The procreative right can be looked at
from two perspectives one containing the positive and the negative right to procreate and the
other being the narrow and the broader right to procreate. The narrow procreative right, which
is a negative or first generation right, is linked to a bundle of fundamental negative rights
regarding bodily integrity. The broader procreative right which is positive or second generation
right, is linked to economic and social rights (or entitlements) like rights to reproductive
education and actual means to choose family size.
Moreover, in Suchita Srivastava v. Chandigarh Admn7., the Supreme Court had ruled that “a
woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as
understood under Article 21 of the Constitution of India.”
Black’s Law Dictionary defines procreation as the generation of children. These rights are
human rights and are universal, indivisible, and undeniable. These rights are founded upon
principles of human dignity and equality, and have been enshrined in international human
rights documents.
1.3 FREEDOM OF OCCUPATION
It is argued that commercial surrogacy is protected by Article 19(1)(g) of the Indian

Constitution. Article 19(1)(g) protects the freedom of citizens to “to practice any profession,
7
Suchita Srivastava v. Chandigarh Admn (2009) SCC1,para 22

or to carry on any occupation, trade or business.” However, the real test is whether a ban on
commercial surrogacy is within the ambit of “reasonable restrictions” under Article 19(6).
1.3.1 LACK OF REASONABLE RESTRICTIONS
It is argued that there were less intrusive measures that the government could have undertaken
to meet the same end. Modern Dental College vs State Of Madhya Pradesh 8, as well as Md.
Faruk v. State of Madhya Pradesh9 opined that a restriction under Article 19(6) cannot be
reasonable if an alternative existed which would have been a less intrusive infraction of a
persons’ rights under Article 19(1)(g).
1.3.2 LACK OF DATA
It is also of value to note that State of Maharashtra v. Indian Hotel and Restaurants
Association10 held that a State cannot satisfy its burden while making a restriction on an Article
19(1)(g) right if there is insufficient data to show harm. While the government claims that
economic exploitation and extortion of women exists within commercial surrogacy, there is
very little hard data on the sector. In fact, there is no reliable data even on the number of
Assisted Reproductive Technology (ART) clinics in the country. While the lack of data does
not preclude the exploitation of women, it does indicate that the State has not satisfied its
burden prior to curbing the fundamental right.
Thus, the proposed law is foul of Article 19 in general, and Article 19(1)(g) specifically, which
guarantees the “freedom of trade and profession” in India. The surrogacy industry is the source
of bread and butter for not only the surrogate mothers but also the numerous surrogacy clinics
in the country. A blanket ban on commercial surrogacy cannot be justified as a reasonable
restriction because it jeopardizes the interests of multiple stakeholders in this multi-billion-
dollar industry.
The surrogacy law needs an overhaul as it seems to be out of sync with the progressive thought
of superior constitutional courts, which have always held women’s reproductive autonomy and
every citizen’s procreative rights in the highest esteem. In the simplest of terms the right to
8
Modern Dental College vs State Of Madhya Pradesh AIR 2016
9
Md. Faruk v. State of Madhya Pradesh 1970 AIR 93,1970SCR(1)156
10
State of Maharashtra v. Indian Hotel and Restaurants Association,AIR 2013

commission surrogacy, to found a family, to procreate is a personal decision which cannot and
should not have government intrusion in a democratic society.
COMPENSATORY SURROGACY
Compensatory surrogacy is similar to commercial surrogacy yet distinguished from

commercial surrogacy by the nature, quantum or purpose of payment. Compensatory surrogacy
entails payment of reasonable payment sufficient to meet the cost of surrogacy pregnancy and
incidental medical expenses and not any more, this is for recompensating to place the surrogate
mother in the same position in terms of health to the surrogate mother. In compensatory
surrogacy, the quantum of monetary compensation including maximum and the minimum limit
is stipulated. The heads of expenditure, stages of payment, pre-determined by the court or the
government committee under the statutes, regulations. Commercial surrogacy is devoid of any
payment. In compensated surrogacy, the central purpose of payments is compensation,
restoration of health of surrogate mother. Compensation needed for the surrogate mother for
the purpose of financial support of her family during the gestational period.
A progressive initial model of compensated surrogacy in India is laid down under the Indian
Society for Third-Party Assisted Reproduction (INSTAR) 2013 comprising of a group of
doctors, social workers, lawyers stipulates a uniform pre-determined minimum compensation
of 2.25 lakhs for surrogate mothers across India to be paid to all the surrogate mothers
throughout India be paid after 28 weeks irrespective of the outcome of pregnancy and
compensation cover for risks facing fallopian tubes , removal of uterus, hysterectomy around
25,000 and Rs.1 lakh respectively
Hence it is humbly submitted before this Hon’ble Bindia bench that the proviso Sec 4(ii)(b)
&(c) of The Surrogacy (Regulation) Act, 2021 to the extent of prohibiting commercial
surrogacy and allowing altruistic surrogacy is violative of Art 19(1)(g), 21 of Bindia
constitution.

ISSUE II: Whether the provisions of The Surrogacy (Regulation) Act, 2021 expands its
parameter in prohibiting unmarried couples, live-in couples and same-sex couples from
availing surrogacy is Constitutionally valid?
It is most humbly submitted before the Hon’ble Court that the Provisions of The
Surrogacy (Regulation) Act, 2021 expands its parameter in prohibiting unmarried couples, live-
in couples and same-sex couples from availing surrogacy is not constitutionally valid. The Acts
allow only married infertile couples and certain categories of women to avail ARTs and
surrogacy which violates the Constitutional rights (i.e., Firstly, Right to Equality [2.1],
Secondly, Discrimination on the ground of sex,[2.2] and affects the personal Liberty and
Human Dignity[2.3]) conferred under the Bindian Constitution 1950, to the unmarried couples,
live-in couples and same-sex couples too.
2.1. RIGHT TO EQUALITY AMONG ALL
Equality may be a fiction but nonetheless one must accept it as a Governing Principle
DR.BR.AMBEDKAR -
Art. 14 of the Bindia Constitution guarantees to every person the right to equality before the
law or the equal protection of the laws. Equality before the law or the equal protection of the
law does not mean the same treatment to everyone. As no two human beings are equal in all
respects, the same treatment to them in every respect would result in an unequal treatment. In
the meantime, the Right to Equality as incorporated in Art. 14 requires legislation for its
operation so that equals may be treated equally and unequal may be treated differently. The
varying needs of different classes of persons require different treatment. So, the Art.14 allows
the legislator to make classification for treating the unequal equally.
2.1.1 TESTS FOR VALID CLASSIFICATION:

The Constitution guarantees equal protection of the law to all and permits class legislation only
so long as it is founded on “real and substantial distinction” that has a rational nexus with the
object sought to be achieved by the legislation.11 In the absence of such distinction, the
discrimination may be deemed “arbitrary” and in violation of Art. 14.12
A legislative classification to be valid must be reasonable. It must always rest upon some real
and substantial distinction bearing reasonable classification and just relation to the needs for
11
Union of India v. N.S. Rathnam, (2015) 10 SCC 681, para 18.
12
The Constitution of Bindia, Art. 14 (equality before the law and equal protection of the laws).

purpose in respect of which the classification is made.13 In order to pass the test for permissible
classification, two conditions must be fulfilled, namely,
1) the classification must be founded on an intelligible differentia which distinguishes persons
or the things that are grouped together from others left out of the group; and
2) the differentia must have a rational nexus to the object sought to be achieved by the statute
in question 14
To implement the right to equality under Art. 14, classification is permitted; however, the tests
against which State action are scrutinized, are those of non-arbitrariness, rationality, and
intelligible differentia (that is, distinguishing those that are grouped together from others). Such
differentia must have a rational relation to the object sought to be achieved by the Act. But in
present case, the term “married heterosexual couples” is an unreasonable classification. It is
submitted that the ART and SR Acts fail to satisfy each of these tests.
The term heterosexual couple has been approached in a very narrow sense by disallowing the
right to choice vis-à-vis surrogacy for homosexuals (gay, bisexuals and lesbians), transgender
who is under the umbrella term of LGBTQIA+, unmarried couples and single parent. Even
in NALSA v. Union of India15, judgment of SC which recognized the transgender people
belonging to third gender who are equally entitled to enjoy all fundamental rights.
The Proposed Act says that, “Couple means legally married Indian man and Woman above the
age of 21 years and 18 years respectively”16 which deliberately violates the Fundamental rights
of unmarried couples, live-in-couples, and same sex couples -thus recognized their relationship
as a marriage by several Landmark Precedents. Such provisions under this Act violates the
right to have a child for those couples.
The Act reinforces the majoritarian Indian morality that stigmatizes the idea of homosexuality
and unmarried people living together. Here, it is pertinent to note that that being a homosexual
or residing in a live-in relationship17 18
is not illegal per se in the country, and limiting the
access of altruistic and commercial surrogacy is a clear instance of discrimination against these
minorities. In the present act, along with many other conditions, limit the ambit of the law by
only putting heterosexual married couples then a class of people is born. Such classification is
difficult to be justified as there is no reason as to why others have been excluded. Why can’t a
13
State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75, 1952 SCR 284
14
Motor general traders v state of Andhra Pradesh(1984)1 SCC 222,229: AIR 1984 SC 121
15
AIR 2014 SC 1863
16
Sec. 2(1)(h) of Surrogacy Regulation Act 2021
17
Badri Prasad v. dy. Director of Consolidation 1978 AIR 1557, 1979 SCR (1) 1
18
S.P.S. Balasubramanyam v. Suruttayan Alias Andali AIR 1992 SC 756, 1992 Supp (2) SCC 304

transgender, homosexual couple, widow or a widower get a surrogate? There is no mention of

the people who are in a live-in relationship and Why can’t unmarried avail the option of a
surrogate? “Parenthood is beyond gender, sexuality or sexual preferences. Remember, gay
people are born from heterosexual acts too.”
2.2 DISCRIMINATION ON THE GROUND OF SEX
According to Bindia Constitution 1950,19The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them.
In 2018, the Indian judiciary in Navtej Singh Johar v. Union of India20 along with
decriminalising the carnal engagement of two consenting same-sex individuals mentioned
about how there is a need to come up with more laws to sensitise the society and build a
communal space that is conducive of growth and recognition of such people. The text of the
judgement was seen as a big leap towards the recognition of gay rights All human beings male,
female, and transgender included as natural person21.
Discrimination based on sexual orientation and gender identity is a violation of Art. 1422. So, a
classification to be valid must necessarily satisfy that the distinguishing rationale has to be
based on just objective and the choice of differentiating one set of persons from another must
have reasonable nexus to the objective23. Curtailing the right of same sex people, transgender,
unmarried couple, and single parent for begetting the child through surrogacy is unjust and
arbitrary.
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
Art. 15(1) is discriminatory State action and impermissible, as per the Supreme Court’s
landmark ruling in Navtej Singh Johar & Ors. v. Union of India.
Human rights recognized in the UDHR: “Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status”
19
Art.15(1) of Bindian Constitution,1950.
20
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
21
national legal services authority v. union of india 2014 5 scc 438
22
Suresh Kumar Koushal v. Naz Foundation Civil Appeal No. 10972 OF 2013
23
Kallakkurichi Taluk ... v. State Of Tamil Nādu

2.3 DUE PROCESS OF LAW

The life and liberty of a person cannot be deprived except according to procedure established
by the law. It is the personal choice of the person to access to surrogacy, delimiting the access
is a violation of personal liberty. As stated earlier, the provision is silent about the rights of
LGBTQ, Unmarried couple, single parent to access to surrogacy.
The court already have stated in a case24, Chandrachud J said that the procedure in Art. 21 “has
to be fair, just and reasonable, not fanciful, oppressive or arbitrary as in the word “law” the
conversion of “procedure established by law” into “due process of law” in the US sense which
the constitutional makers had intended to avoid replacing the latter expression by the former.
Here, the procedure established by the law is held to unjust and unfair as it curtails the personal
liberty of the persons based on sexual orientation and gender identity.
Devika Biswas v. Union of India,25 the right to reproduction was described as an essential facet
of the 'Right to Life' under Article 21. Women's reproductive rights include the right to carry a
baby to term, giving birth, and raising children. Thus, restricting surrogacy only to heterosexual
couples and within a particular age group while denying reproductive choices to the LGBT
community, single persons, and older couples is an evident violation of Article 21 and
Article 14 as well.
In K.S. Puttaswamy v. Union of India, the Supreme Court has upheld an individual’s right to
privacy as intrinsic to Art. 21, recognising further that privacy is relatable to the constitutional
right to make reproductive choices.26 Moreover, in Suchita Srivastava v. Chandigarh Admn.,
the Supreme Court had ruled that “a woman’s right to make reproductive choices is also a
dimension of ‘personal liberty’ as understood under Art. 21 of the Constitution of India.”27
Judicial precedent is, therefore, abundantly clear that the Constitution protects and safeguards
reproductive choices as part of the individual’s inalienable right of personal liberty. In this
context, the age eligibility criteria set out in the Act appear to encroach upon the private lives
of both surrogates and intended parents and strip them of reproductive autonomy.
In 2003, Justice S B Sinha held that affirmative actions might be valid but it would violate
“Constitutional morality” if it is not in consonance with doctrine of equality. Constitutional
supremacy, equality and rule of law is part of salient features of Constitutional morality. Art.21
24
Maneka Gandhi v. Union of India, 1978 AIR 597 1978 SCR (2) 621 197.
25
(2016) 10 SCC 726.
26
(2017) 10 SCC 1, 83.
27
(2009) 9 SCC 1, para 22.

encapsulates gender identity as an inviolable part of the fundamental right to dignity, at the
core of which is self-determination and autonomy.
2.4 LIVE IN -RELATIONSHIP IS NATURE OF MARRIAGE
It is humbly submitted before the court that Live-in-relationship is considered as marriage and
Right to Surrogacy also can be brought under the purview of live-in-relationship couples as an
intending couple. Live-in-relation, also known as cohabitation, is an arrangement in which two
people decide to live together for an extended period or permanently in an emotionally or
sexually intimate relationship. The term is most applied to unmarried couples. Looking at the
given definition, Live-in-relationship seems not be the ream marriage, however it can be
considered as a marriage or a relationship in nature of marriage. Live-in-relationship is not
recognised by the Hindu Marriage Act,1955 or any other Statutory law but it is not illegal in
the eye of law. When certain condition is fulfilled, live-in comes under the canopy of marriage.
In the judgment of the Supreme Court in D. Velusamy v. D. Patchaiammal28, which reads as
under: “In our opinion a "relationship in the nature of marriage" is akin to a common law
marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin
to spouses for a significant period of time.
In the Present case, Anil and Ankruta was in a live-in relationship for a very long period, IT
professionals of aged 37 and 29 respectively. The term “a very long period” denotes that they
hold themselves out to society as being akin to spouses and they fulfils the above conditions
which is said in the D. Velusamy v. D. Patchaiammal.
In our opinion a "relationship in the nature of marriage" under the 2005 Act must also fulfil the
above requirements, and in addition the parties must have lived together in a "shared
household" as defined in Sec. 2(s) of the Act.29
Sec. 2(f) of the DV Act 2005 defines "domestic relationship" to mean, inter alia, a relationship
between two persons who live or have lived together at such point of time in a shared
household, through a relationship in the nature of marriage. The expression "relationship in the
28
(2010) 10 SCC 469
29
The Protection of Women from Domestic Violence Act,2005

nature of marriage" is also described as de facto relationship, marriage-like relationship,

cohabitation, couple relationship, meretricious relationship (now known as committed intimate
relationship), etc.
In Tulsa V. Durghatiya30 and Badri Prasad V. Dy. Director of Consolidation31, The supreme
court held that: “The status of wife – here a man and a woman live together as husband and
wife for a long term, the law will presume that they were legally married unless proved
contrary. In Varsha Kapoor V. UOI and Ors.32 The Delhi High court has held that female living
in a relationship in the nature of marriage has right to file complaint not only against husband
or male partner, but also against his relatives. A live-in-partner has right to maintenance under
Sec. 125 of Cr.PC.” Thus, a woman under live-in entitle to maintenance by her partner which
shows that live-in is more or less a relationship of marriage. In view of above all Judgements,
Live-in-couples entitled to get all those rights of legally married couples which is conferred by
law in time being in force.
In the landmark case of S. Khushboo v. Kanniammal,33 the Supreme Court held that a living
relationship comes within the ambit of Right to Life under Art. 21 of the Constitution of India.
The Court further held that live-in relationships are permissible and the act of two major living
together cannot be considered unlawful or illegal.
The Supreme Court of Bindia first recognised the practice of commercial and altruistic
surrogacy in Manji Yamada v. Union of India.34 Pertinently, the Court acknowledged that
intended parents may include homosexuals, single males, or women who are fertile yet
unwilling to undergo pregnancy, and not simply infertile spouses.35
In Puttaswamy,36 the Supreme Court had elucidated that “sexual orientation is an essential
attribute of privacy, and any discrimination against an individual based on sexual orientation is
deeply offensive to the dignity and self-worth of the individual.” The Court had further
propounded that protection of an individual’s rights to privacy and sexual orientation lay at the
heart of the fundamental rights guaranteed by Art. 14, 15 and 21 of the Constitution.
Similarly, in National Legal Services Authority v. Union of India, the Court had recognised
members of the marginalised transgender community as the “third gender” and observed that
discrimination on account of gender identity and sexual orientation undermines equality before
30
15-01-2008, Civ. C no. 648 of 2002
31
1978 AIR 1557, 1979 SCR (1)
32
3-07-2010, WP Crl. No.638 of 2010
33
(2010) 28-04-2010
34
(2008) 13 SCC 518.
35
Manji Yamada v. Union of India, (2008) 13 SCC 518, paras 8-15.
36
(2017) 10 SCC 1.

the law and equal protection of the laws, thereby violating Art. 14 of the Constitution.37
Consequently, the absolute debarment of same-sex partners and persons with non-binary
gender identities from the purview of the Proposed Act is, arguably, in contravention of their
Fundamental Rights and the law laid down by Bindia’s Supreme Court in notable judicial
pronouncements.
The Proposed Act forbids singles and heterosexual cisgender couples who may be in a “live-in
relationship” i.e., cohabiting but not legally married, from opting for surrogacy. It is pertinent
to note that Parliament has previously accorded statutory sanctity to such relationships by
classifying them as “relationships in the nature of marriage.”38 An individual’s choice to marry
or not has been held by the Supreme Court to be beyond the legitimate concerns of the State,
thus precluding singles and cohabiting couples from opting for parenthood through surrogacy
simply because they are not married is seemingly an encroachment on their privacy and an
unwarranted infringement of their right to equality.39
The exclusion of non-conforming gender identities, same-sex or cohabiting couples, and
singles from the scope of the Act appears to have no logical nexus with the object of the
proposed legislation i.e., regulation of the practice of surrogacy, the prevention of potential
exploitation of surrogates, and protection of the rights of the child born through surrogacy.40
2.5 PARENTHOOD OF GAY COUPLES

It is often assumed that parents’ primary motivation for using ART is to have a genetic
connection to the child. This study revealed that whilst genetic fatherhood was important for
some gay fathers in surrogacy families, it was not important for all. This information will be of
use to surrogacy agencies and organizations supporting men who are considering the different
routes to parenthood.
In the 2018 landmark judgment of Navtej Singh Johar v. Union of India, wherein consensual
same-sex relationships were decriminalised, the Court had observed that the time had arrived
for the constitutional guarantee of equality and inclusion to end the decades of discrimination
practised on a “majoritarian impulse of ascribed gender roles.”41
In 2014,42 ~37 800 male same-sex couples were raising children in the USA. Gay couples who
wish to become parents may do so through surrogacy, a process in which a woman carries a
37
National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 62
38
The Protection of Women from Domestic Violence Act, 2005, S. 2(f).
39
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, para 84.
40
Statement of objects and Reasons to the Surrogacy (Regulation) Act 2021.
41
(2018) 10 SCC 1, para 461.
42
US Census Bureau, 2014

pregnancy to term with the intention to relinquish the child to the intending parent(s). Intending
fathers may choose to conceive using gestational surrogacy, where an embryo is created using
the sperm of one partner and the egg of a donor, which is then transferred to the surrogate, or
genetic surrogacy, in which conception occurs using the sperm of one partner and the egg of
the surrogate.
2.5.1 SURROGACY IS THE ONLY WAY TO BECOME A PARENT

For gay couples who want kids, surrogacy is one of only two options (the other being adoption).
It is a lengthy and expensive process, and because of differing laws from state to state, it can
be an even more complicated process for same-sex prospective parents.
ART Act very clearly states that its objective is merely to regulate and supervise ART clinics
and banks, and provide an avenue for safe and ethical ART services. The object of the SR Act,
on the other hand, is to create a framework of boards and authorities to regulate surrogacy
procedures. Under the ART Act, commissioning couples have to satisfy requirements of being
legally married, above the age of 23 and 26 years for women and men respectively, infertile,
and having no existing children. Even in a heteronormative setting, this excludes newly married
couples (for example, a married couple where the woman is between 18-23 years and a man is
between 21-26 years) who are desirous of having a baby, or those who have an existing child
but are unable to have another and wish to do so via surrogacy.
Excluding members of the LGBTQ+ community from availing ART and surrogacy services,
based on their identity and sexual orientation, is discriminatory and falls afoul both Art. 14 and
Art. 21.
“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.”
Hence, The Petitioner Humbly Submitted Before This Honourable Supreme Court That The
Provisions of The Surrogacy (Regulation) Act, 2021 Sec.2(h) expands its parameter in
prohibiting unmarried couples, live-in couples and same-sex couples from availing surrogacy
is constitutionally not valid.

ISSUE III: Whether the age limit prescribed for men and women in the said Act
reinforced the patriarchal values by withering away the laws of equality?
It is humbly submitted before this Hon’ble Bench that the SR Act, 2021 are in contravention
of Art. 14,15(1), and 21 of the Constitution through their discriminatory, exclusionary, and
arbitrary in nature.
The need for differing and arbitrary age restrictions is unclear. Herein, there are blatant
inconsistencies within the SR Act itself. While Sec. 2(1)(r) in defining an intending couple
contemplates a legally married Indian man and women above the age of 21 years and 18 years
respectively, Sec. 4(iii)(c) as a compliance provision mandates the eligibility certificate to be
issued to the intending couple only when the male member of the intending couple is between
26-55 years of age and the female is between 23-50 years of age. Without such a certificate,
surrogacy services cannot be availed. When implementing the statute, it would be impossible
to reconcile multiple provisions providing differing age-related eligibility criteria.
As per the Sec 2(1)(r) of Surrogacy Regulation Act 2021, “Intending couple means a couple
who have a medical indication necessitating gestational surrogacy and who intend to become
parents through surrogacy.” the stringent definition which affects the right to privacy of those
couples and which restricts only for those having medical indication.
3.1 WITHERING AWAY THE LAWS OF EQUALITY
Equality before the law, also known as equality under the law, equality in the eyes of the law,
legal equality, or legal egalitarianism, is the principle that each independent being must be
treated equally by the law and that all are subject to the same laws of justice (due process).
Therefore, the law must guarantee that no individual nor group of individuals be privileged or
discriminated against by the government. Equality before the law is one of the basic principles
of liberalism. The attempt of the court should be to expand the reach and ambit of the
Fundamental rights rather than to attenuate their meaning and content by a process of judicial
construction43. Equality is a basic feature of the Constitution of India and any treatment of
equals unequally or unequals as equals will be violation of basic structure of the Constitution
of India44.
43
Maneka Gandhi v. UOI, AIR 1978 SC 597
44
MG Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264: (2001) 2 SCC 666.

In the case of State of A.P. (v) Mc Dowell And co.,45 SC held that a foreigner is certainly entitled
to equality before law.
From a rights-based perspective, SR Act fall afoul articles 14,15(1) and 21 of the constitution
which prohibit the state from denying equality before the law or equal protection of laws to
any person from discriminating any citizens on grounds of sex among others and from
depriving a person of her life personally or liberty except according to procedure established
by law.
Sec. 4(c)(I) of the act is violated Art. 14 because it permits only intended couple only with
particular age range can obtain certificate of eligibility under the Act. A regulation framed
under a statute should applies uniform treatment to everyone or to all members of some group
(intended couples without age limit).
The impugned provisions have created several classes not based on a intelligible differentia
such as (i) who can be a surrogate mother and who cannot be a surrogate mother (ii)
differentiation between intending couple and married couple who belong to same class (iii)
certificate of essentiality and certificate of eligibility has been restricted only to the intending
couple are married and between the age of 23 to 50 in case of female and between 26 to 55
years in case of male on the day of certification. The article 14 prohibits class legislation which
inculcated by the SR Act. Any legislation that discriminates against any individual based on
their sexual orientation violates article 14.46
The Act further has women age scale criteria beyond which they cannot be surrogate and in
furtherance their right to privacy is invaded. The main challenge put forth is that the right to
life. The main challenge put forth is that right to life under Art. 21 as explored through various
judicial pronouncements, has numerous dimensions. Life with human dignity is one such. The
Right to Reproductive autonomy according to one’s own choice, is comprehended within the
concept of human dignity. Since the impugned provisions prevent such right, they are violative
of the Constitutional guarantee. The remedy of conjugal rights of spouses is not violative of
Art. 14 or Art. 21 of the Constitution, being not a creature of statute but inherent in the
institution of marriage47. Similarly, right to reproduction is basically a personal privilege,
sanctioned by ancient scriptures. Basically, it is not bestowed by any statute. Opting for a
surrogacy is a personal choice for an individual. A state cannot interfere in peoples’ personal
45
State of A.P. (v) Mc Dowell And co AIR 1996 SC 1627.
46
Navtej singh johar v. Union of India
47
Smt. Saroj Rani v. Sudharshan kumar chandha 1984 AIR 1562,1985 SCR(1) 303

choices by restricting in section 4(b)(I), 4(b)(IV) and 4(c)(I) through the SR Act. To obtain a
certificate of infertility from the district medical board which is a violation of right to privacy
under Art. 21 and has been recognised as a fundamental to be protected. 48 So as per SR Act
certificate of essentiality and certificate of eligibility should be based on medical conditions
not on based on age of the intending couples. This eligibility criteria is being a barrier for the
couples whose age extends 50 years for female and 55 years for male and wishes to have child
through surrogacy the Act instead acting boon for few it is a ban for several couples.
The following are some of the International provisions that are being violated:
UDHR (Universal Declaration of Human Rights)

Article 12 – Right to privacy
Article 16 – Right to marry and start a family
ICCPR (International covenant on civil and political rights)
Article 17 – Right to privacy
ICESCR (International Covenant on Economic, Social and Cultural Rights)
Article 10 – Right to parenthood
Hence, humbly submitted before this hon’ble bench the Surrogacy (regulation) Act 2021 has
both pros and cons. Though it protects women from being overexploited, it also takes away
some of their rights. This Act should be amended in such a way that it does not discriminate
against anyone on the basis of sexual orientation.
ISSUE IV: Whether the vaccum in The Surrogacy (Regulation) Act, 2021 had
incapacitated and deserted the rights of incarcerated person to have a child of their own?
It is humbly submitted that the vaccum in the surrogacy (Regulation) Act, 2021 had
incapacitated and deserted the rights of incarcerated person to have a child of their own. There
is no express proviso regarding the rights of incarcerated person to have a child of their own in
the surrogacy (Regulation) Act, 2021. Prisons, and their administration, is a state subject
covered by item 4 under the State List in the Seventh Schedule of the Constitution of India.
The management and administration of prisons falls exclusively in the domain of the State
governments, and is governed by the Prisons Act, 1894 and the Prison manuals of the respective
48
Justice KS Puttaswamy & Anr v. Union of India, 2017

state governments. Thus, the states have the primary role, responsibility, and authority to
change the current prison laws, rules and regulations49.
4.1 If prisoners are entitled to receive medical treatment regardless of their crimes, should
this extend to fertility treatment?
It is generally accepted that prisoners should not be debarred from access to medical treatment
in accordance with their needs. Therefore, if fertility treatment can be construed as a medical
need, it might seem unreasonable to deny access to prisoners.
In Hindu families the child is given a very important place. According to Riga Veda, the
husband accepts the palm of wife in order to get a high breed progeny. Marriage is a basic of
all religion activities. In the words of K. M. Kapadia "marriage is primarily for the fulfilment
of duties; the basic aim of marriage was dharma"50.
Medical check-ups and treatment of the petitioner for infertility is an essential part of this right
and without allowing husband of the petitioner to get his wife treated for such purpose the
concept of this right under Art 21 of the Constitution of India shall remain only a hollow and
shallow concept.51
The protection of Art. 21 is also available to the convicts who are in jail. The convicts should
not be deprived of all the fundamental rights merely for the reason of conviction. A convict in
jail is deprived of the fundamental freedom to move freely throughout the territory of India. A
convict is entitled to all the other fundamental rights including the right that is guaranteed under
Art. 21 of the Constitution and he shall not be deprived such right except by a procedure
established by law. In Maneka Gandhi v. Union of India52, the Supreme Court gave a new
dimension to Art. 21. The Court has interpreted Art. 21 of the Constitution to have the widest
possible amplitude. This case laid down a new constitutional and prison jurisprudence.
In the case of Bandhua Mukti Morcha v. Union of India53, another important aspect of Article
21 was observed in which it was said to be the heart of all the fundamental rights of the people,
the Court gave it an expanded interpretation. Bhagwati J. observed in this case that, it is the
49
"India - The Penal System". Country-data.com. Retrieved 4 June 2013.
50
Oxford University Press, 1996
51
Rajeeta Patel v. State of Bihar and others, 2020 (4) PLJR 669.
52
1978 AIR 597, 1978 SCR (2) 621
53
1984 AIR 802, 1984 SCR (2) 67

fundamental right of every person in this country to live with human dignity and free from any
kind of exploitation. The right to live with human dignity which is enshrined in Article 21 of
the Constitution derives its very existence from the Directive Principles of State Policy
particularly from clauses (e) and (f) of Art 39 and Articles 41 and 42 of the Bindia Constitution.
4.2 Whether the denial of conjugal relationship of the convict for specific purpose
amounts to denial of fundamental rights?
Yes, the denial of conjugal relationship of the convict for specific purpose amounts to denial
of fundamental rights guaranteed under Art 21of the Bindia Constittution.
Before further addressing the issue, it would be relevant to analyse the meaning of the words
conjugal rights. Conjugal rights mean the privilege to the husband and wife arising from the
marriage, including mutual rights of companionship. The words aforesaid are commonly used
when one of the partners denies the companionship to the other. In such circumstances,
conjugal rights are sought to be enforced by the partner who had been denied such
companionship. The enforcement of conjugal rights is invariably made by invoking the
provisions of the Hindu Marriage Act, 1955.The words aforesaid have been imported even for
the prisoner to have conjugal relationship with the spouse.
A conjugal right in common parlance is for maintaining marital status by husband and wife.
The leave for a specific purpose which may be for undergoing infertility treatment, as such,
may not be considered for having conjugal relationship in common parlance, but for
extraordinary reason, thus we can safely hold that the 1982 Rules itself protect the rights of the
prisoner guaranteed under Art 21 of the Constitution of India to the extent it is required.
(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial
of the fundamental right guaranteed under Art 21 of the Constitution of India. The specific
purpose may be infertility treatment or some similar reason, but it should not be construed to
be a fundamental right for having conjugal relationship as a course.
(ii) The State can be directed to consider the request of convict for emergency leave or ordinary
leave for the purpose given while answering the question No.(i). The emergency leave or
ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary

reason exists, then the State need to consider the aforesaid as and when a request is made by
the convict or his relative for grant of ordinary leave for extraordinary reasons.54
As mentioned above, the right of progeny can be performed by conjugal association, the same
has an effect of normalizing the convict and also helps to alter the behaviour of the convict-
prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society
peacefully after his release.
The wife of the prisoner has been deprived of her right to have progeny whilst she has not
committed any offence and is not under any punishment. Thus, denial to the convict-prisoner
to perform conjugal relationship with his wife more particularly for the purpose of progeny
would adversely affect the rights of his wife.
CONJUGAL RIGHTS AND RIGHT TO PROGENY

In the case mentioned, the Rajasthan High Court55 had tested the wife’s petition asserting her
“conjugal rights” and “right to progeny” on three aspects — religious, sociological, and legal.
1. RELIGIOUS PHILOSOPHIES
Having progeny for the purpose of preservation of lineage, has been recognized through
religious philosophies, the Indian culture and various judicial pronouncements. Not only the
humanitarian aspect as referred above, the right of progeny also finds mentioning in the
religious scriptures and is mentioned in the literature available on various sites.
• AS PER HINDU PHILOSOPHY, Garbhadhan, i.e. attaining the wealth of the womb is
the first of the 16 sacraments. Scholars trace Garbhadhana rite to Vedic hymns, such as
those in sections 8.35.10 through 8.35.12 of the Rigveda, where repeated prayers for
progeny and prosperity are solemnized, bestow upon us progeny and affluence.
• IN JUDAISM, CHRISTIANITY, AND SOME OTHER ABRAHAMIC RELIGIONS,
the cultural mandate is the divine injunction found in Genesis 1:28, in which God, after
having created the world and all in it, ascribes to humankind the tasks of filling,
subduing, and ruling over the earth. The cultural mandate includes the sentence "Be
fruitful and multiply and fill the Earth." The cultural mandate was given to Adam and
Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and
the Cairo Declaration of Human Rights in Islam also supported the protection of lineage
54
Neha v.State of Haryana & Ors, 2022
55
Nand Lal v. State,Dept. of Home, Rajasthan,Jaipur.&Ors.2022

in Islam. All the articles of CDHRI covered the five basic human rights mentioned in
Maqasid I Shariah. The first main objective of Maqasid I Shariah is the completion of
human’s necessity; in which protection of progeny (nasl) is the foremost purpose.
2. SOCIOLOGICAL ASPECT
As regards the right of convict is concerned, connecting the same with Hindu philosophy, there
are four Purusharths, object of human pursuit which refer to four proper goals or aims of a
human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity,
economic values), Kama (pleasure, love, psychological values) and Moksha (liberation,
spiritual values, self-actualization).When a convict is suffering to live in prison, he/she is
deprived to perform the above mentioned purusharths, among them, 3 of four purusharths, i.e.
Dharma, Artha and Moksha are to be performed alone, however, in order to
perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her
spouse in case he/she is married.
At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a
case where the innocent spouse is a woman and she desires to become a mother, the
responsibility of the State is more important as for a married woman, completion of
womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming
a mother, her image gets glorified and becomes more respectful in the family as well in the
society. She should not be deprived to live in a condition wherein she has to suffer living
without her husband and then without having any children from her husband for no fault of
her.
3. LEGAL ASPECT
Art. 21 of the Constitution guarantees that no person shall be deprived of his life and personal
liberty except according to procedure established by law. It includes within its ambit the
prisoners also. The Supreme Court in the case of D. Bhuvan Mohan Patnaik and Others v. State
56
of Andhra Pradesh & Ors declared that convicts cannot be denied the protection of
fundamental rights which they otherwise possess, merely because of their conviction.
Since Nindhya the spouse of the Suraj, a prisoner is innocent and her sexual and emotional
needs associated with marital lives are affected and in order to protect the same, the prisoner
ought to have been awarded cohabitation period with his spouse. Thus, viewing from any angle,
it can safely be concluded that the right or wish to have progeny is available to a prisoner as
well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also
56
AIR 1974 SC 2092

found opposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her
right to get progeny57. Justice are of the considered view that though there is no express
provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner
on parole on the ground of his wife to have progeny; yet considering the religious philosophies,
cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed
by the Constitution of India and while exercising extra ordinary power vested in it, this Court
deem it just and proper to allow the instant writ petition.
In Rajeeta Patel @Rajita Patel v.The State of Bihar58 answered the question framed in the said
case:
(i) Whether the right to procreation survives incarceration, and if so, whether such a right is
traceable within our Constitutional framework?
Yes, the right to procreation survives incarceration. Such a right is traceable and squarely falls
within the ambit of Art. 21of our Constitution read with the Universal Declaration of Human
Rights.
(ii) Whether penological interest of the State permits or ought to permit creation of facilities
for the exercise of right to procreation during incarceration?
The penological interest of the State ought to permit the creation of facilities for the exercise
of right to procreation during incarceration, may be in a phased manner, as there is no inherent
conflict Patna High Court CR. WJC No.1868 of 2019 dt.12-10-2020 between the right to
procreate and incarceration, however, the same is subject to reasonable restrictions, social order
and security concerns;
(iii) Whether 'right to life' and 'personal liberty' guaranteed under Article 21 of the Constitution
include the right of convicts or jail inmates to have conjugal visits or artificial insemination (in
alternate)?
'Right to life' and 'personal liberty' guaranteed under Article 21 of the Constitution include the
right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate).
However, the exercise of these rights is to be regulated by procedure established by law, and
are the sole prerogative of the State.
57
IBID 55
58
IBID 51

(iv) If question No.(iii) is answered in the affirmative, whether all categories of convicts are
entitled to such right(s)?
Ordinarily, all convicts, unless reasonably classified, are entitled to the right to procreation
while incarcerated. Such a right, however, is to be regulated as per the policy established by
the State which may deny the same to a class or category of convicts as the aforesaid right is
not an absolute right and is subject to the penological interests of the State."
This Court is therefore, persuaded to hold that right to have a conjugal visit or artificial
insemination in alternative is included under Article 21 of the Constitution of India, this is,
however, subject to the regulatory procedure as may be provided by law.
In the case of Francis Coralie Mulin versus the Administrator, Union Territory of Delhi59
reported in the Hon'ble Supreme Court has interpreted the expression "personal liberty"
contained in Art. 21 of the Constitution in the context of the rights of a prisoner and it has been
held that the prisoner has all the fundamental rights and other legal rights available to a free
person, save those which are incapable of enjoyment by reason of incarceration.
4.3 Whether undergoing infertility treatment would fall u/r the category of extraordinary
reasons?
Under Tamil Nādu Suspension of Sentence Rules, 1982 “extraordinary reasons” is given in
Rule20.
Rule 20 provides that “Grounds for the grant of ordinary leave. -The grounds for the grant of
ordinary leave to a prisoner shall be
(i) to make arrangements for the livelihood of his family and for the settlement of life after
release;
(ii) To make arrangements for the admission of the children in the school or college;
(iii) construction or repairing the homestead;
(iv) to make arrangements or to participate in the marriage of the prisoner, sons, daughters, full
brother or full sisters, as the case may be, of the prisoner;
(v) settling family disputes like partition, etc;
(vi) agricultural operations like sowing, harvesting, etc;
(vii) any other extraordinary reasons; and
59
AIR 1981 SCC 746

(viii) in case of female pregnant prisoners, for having delivery outside the prison”.
It cannot, however, mean that under all circumstances except those specified in Rule 20(i) to
(vi) and Rule20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982
Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature
referred in this case, i.e., for undergoing infertility treatment. The meaning of the word
"extraordinary" has not been given in the 1982 Rules. Thus, we are referring to the meaning of
the word "extraordinary "from the Black's Law Dictionary, Tenth Edition, which is as under:
"Extraordinary, adj. (15c) Beyond what is usual, customary, regular, or common
<extraordinary measures>.
It is evident from the facts narrated in the Division Bench order dated 11.1.2018 that leave was
sought referring to extraordinary reasons and the Division Bench dealt with the issue in
reference to the beliefs of psychologists and psychiatrists that, at times, denial of conjugal
relationship may lead to frustration and tension, apart from ill-feelings and heart burnings.
We find that the prayer of the petitioner to undergo infertility treatment in a circumstance when
the convict has no child from the wedlock forms an extraordinary reason for grant of leave. In
view of the above, we find that the case of the petitioner was falling under Rule 20(vii) of the
1982 Rules. It can be granted to undergo infertility treatment, that too, for a convict having no
child from the wedlock.60 Here in the given fact, Suraj and Nindhya have no child from the
wedlock and it forms an extraordinary reason for grant of leave.
4.4 RIGHTS OF THE INCARCERATED PERSONS UNDER UDHR
India is one of the signatories to the universal declaration of human rights. These rights are,
thus, recognized by the Constitution of India in the form of fundamental rights and directive
principles of the State policy.
Universal Declarations 19. The Preamble of Universal Declaration of Human Rights of Human
Rights (1948) talks of recognition of the inherent dignity and of the equal Patna High Court
and inalienable rights of all members of the human family and it is the foundation of freedom,
justice and peace in the world. The proclamation inter-alia reads as under: -
60
Mehraj v. State rep by its secretary & ors, 2022

"This Universal Declaration of Human Rights as a common standard of achievement for all
peoples and all nations, to the end that every individual and every organ of society, keeping
this Declaration constantly in mind, shall strive by teaching and education to promote respect
for these rights and freedoms and by progressive measures, national and international, to secure
their universal and effective recognition and observance, both among the peoples of Member
States themselves and among the peoples of territories under their jurisdiction."
The General Assembly of United Nations in its 68th plenary meeting held on 14 December 1990
affirmed the Basic Principle for the Treatment of Prisoners. Those are extracted herein below:
-Basic Principles for the Treatment of Prisoners
1. All prisoners shall be treated with the respect due to their inherent dignity and value as
human beings.
2. There shall be no discrimination on the grounds Patna High Court CR. WJC No.1868 of
2019 dt.12-10-2020 of race, colour, sex, language, religion, political or other opinion, national
or social origin property, birth, or other status. Except for those limitations that are
demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human
rights and fundamental freedoms set out in the Universal Declaration of Human Rights and
where the State concerned is a party, the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights and the Optional
Protocal thereto as well as such other rights as are set out in other United Nations covenants.
Hence it is humbly submitted that before the Bindia bench there is no express proviso regarding
the rights of incarcerated person to have a child of their own in the surrogacy (Regulation)
Act, 2021.

PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited,it is most
humbly and respectfully prayed before this Hon ‘ble Supreme Court that it may be pleased to
adjudge and declare:
1. To Declare, monetary compensation for surrogate mother beyond the medical expenses &
insurance coverage and to regulate commercial surrogacy instead of prohibiting
2.To Amend, the Act as it discriminates against anyone on the basis of sexual orientation
& To include unmarried couples, live-in couples and same-sex couples from availing
surrogacy.
3.To Declare, declare the age limit prescribed for men and women in the said Act reinforce,
the patriarchal values and violate Art. 14 of Bindia Constitution 1950.
4.To Amend, the Act as it violates the Art. 21 of Bindia Constitution of incarcerated person
to have a child of their own.
And the court may pass any other order, writ or directions that deems fit in the interest
of justice, equity, and good faith.
Respectfully submitted on behalf of the Petitioner,
SD/-
COUNSEL FOR THE PETITIONER.

Petitioner-Jurist Jeremy Bentham

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TEAM - JURIST JEREMY BENTHAM

GOVERNMENT LAW COLLEGE, CHENGALPATTU

IN THE HON’BLE SUPREME COURT OF BINDIA

IN THE MATTER OF:

NEPENTHES & ORS …. PETITIONER

UPON SUBMISSION TO THE HONOURABLE SUPREME COURT OF BINDIA

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF PETITIONER 2

MEMORANDUM ON BEHALF OF PETITIONER 3

MEMORANDUM ON BEHALF OF PETITIONER 4

1. THE CONSTITUTION OF INDIA,1950

1. CONSTITUTION OF INDIA – SHUKLA

MEMORANDUM ON BEHALF OF PETITIONER 5

MEMORANDUM ON BEHALF OF PETITIONER 6

MEMORANDUM ON BEHALF OF PETITIONER 7

MEMORANDUM ON BEHALF OF PETITIONER 8

MEMORANDUM ON BEHALF OF PETITIONER 9

SURROGACY IS A BOON TO THE SOCIETY:

SURROGACY ACT IS A LAW WITH A FLAW

MEMORANDUM ON BEHALF OF PETITIONER 10

The commercial aspect of surrogacy provided a source of psychological detachment of the

VIOLATION OF FUNDAMENTAL RIGHTS

1.1 RIGHT TO LIVELIHOOD

MEMORANDUM ON BEHALF OF PETITIONER 11

1.2 RIGHT TO REPRODUCTIVE AUTONOMY

In the commercial surrogacy context, complete bans or disproportionate restrictions may

Right to liberty includes right to reproductive. In B. K. Parthasarthi v. Government of Andhra

MEMORANDUM ON BEHALF OF PETITIONER 12

1.2.1 THE RIGHT TO PROCREATION AS A FUNDAMENTAL RIGHT

1.3 FREEDOM OF OCCUPATION

It is argued that commercial surrogacy is protected by Article 19(1)(g) of the Indian

MEMORANDUM ON BEHALF OF PETITIONER 13

1.3.1 LACK OF REASONABLE RESTRICTIONS

1.3.2 LACK OF DATA

MEMORANDUM ON BEHALF OF PETITIONER 14

Compensatory surrogacy is similar to commercial surrogacy yet distinguished from

MEMORANDUM ON BEHALF OF PETITIONER 15

2.1. RIGHT TO EQUALITY AMONG ALL

2.1.1 TESTS FOR VALID CLASSIFICATION:

MEMORANDUM ON BEHALF OF PETITIONER 16

MEMORANDUM ON BEHALF OF PETITIONER 17

transgender, homosexual couple, widow or a widower get a surrogate? There is no mention of

2.2 DISCRIMINATION ON THE GROUND OF SEX

MEMORANDUM ON BEHALF OF PETITIONER 18

2.3 DUE PROCESS OF LAW

MEMORANDUM ON BEHALF OF PETITIONER 19

2.4 LIVE IN -RELATIONSHIP IS NATURE OF MARRIAGE

MEMORANDUM ON BEHALF OF PETITIONER 20

nature of marriage" is also described as de facto relationship, marriage-like relationship,

MEMORANDUM ON BEHALF OF PETITIONER 21

2.5 PARENTHOOD OF GAY COUPLES

MEMORANDUM ON BEHALF OF PETITIONER 22

2.5.1 SURROGACY IS THE ONLY WAY TO BECOME A PARENT

MEMORANDUM ON BEHALF OF PETITIONER 23

3.1 WITHERING AWAY THE LAWS OF EQUALITY

MEMORANDUM ON BEHALF OF PETITIONER 24

MEMORANDUM ON BEHALF OF PETITIONER 25

UDHR (Universal Declaration of Human Rights)

MEMORANDUM ON BEHALF OF PETITIONER 26