On Wednesday, the Center had issued a notification to amend the Surrogacy Rules, 2022.
New Delhi:
The Supreme Court on Friday sought to know which law gives legitimacy to children born outside formal marriage, whether it is void or voidable.
A voidable marriage is one that can be invalidated by either spouse through a decree, whereas a voidable marriage is void ab initio.
Justice B.V. A bench of Justice Nagarathna and Justice Augustine George Masih sought to know the existing law while hearing petitions challenging various provisions and rules of the Surrogacy (Regulations) Rules, 2022 and the Assisted Reproductive Technology (Regulations) which govern the treatment of children born out of wedlock. Gives validity to. (ART) Act 2021.
The bench disposed of a number of petitions in view of the Centre’s February 21 notification amending the Surrogacy Rules 2022 and allowing married couples to use donor eggs or sperm in case one of the partners is suffering from a medical condition. Permission was given.
“What is the law that gives legitimacy to children born out of formal marriage, let it be void or voidable. There must be a ceremony of marriage. It may be a void marriage or it may be an invalid marriage. Ceremony Outside marriage, it is not a formal ceremony. Please tell us what is the law that gives legitimacy to the child,” Justice
Nagarathna asked Additional Solicitor General Aishwarya Bhati, appearing for the Center and the lawyer representing the petitioners challenging various provisions of the surrogacy rules.
To avail the benefits of surrogacy provisions, one must attempt to conceive within marriage, he said.
“We are open minded but we are indicating what it is. What is the basis of our indication, we are saying this. Conception within marriage is what you call a legitimate child. Even Hindu marriage Even in case of Section 16 of the Act, there should be a marriage. There should be a void marriage, only then will the illegitimate children get validity under Section 16 of the Hindu Marriage Act. Is there any other law which gives them validity, please let us know. Let us know On that,” Justice Nagarathna said.
Section 16 of the Hindu Marriage Act states that, notwithstanding that the marriage is void under the law, any child born out of such marriage which would have been legitimate if the marriage had been valid, shall be valid.
Under the Act, a marriage can be declared void if either party is already married, if the parties are related to each other within the degree of consanguineous relationship, or if either party is below the legal age for marriage. is less.
Ms Bhati said the Center would assist the court on the issue but no submission had been made by them regarding legitimate or illegitimate children.
He said, “The decision of this court is on legitimate or illegitimate children. Now there is no illegitimate child. That whole concept is gone. But we will assist this court in considering this issue.”
Ms Bhati said there are currently four ways in which children can be born – one can be natural birth, through ART, where a woman can be assisted to have a child herself, then there is adoption. , where you do not give birth to the child and the last one is surrogacy.
The bench said it was not disposing of petitions filed by single unmarried women seeking benefits of the surrogacy law and challenging other provisions of the law.
It asked Ms Bhati to file written submissions on the issue of single unmarried women.
Justice Nagarathna said that the medical reports of some petitioners, as required under the Surrogacy Act, were yet to come.
The bench said, “We will have to see the report of the medical board and then proceed. Unless they come under Rule 14, we cannot allow them to proceed for surrogacy. You can see that Rule 14 of surrogacy is the basis.”
Rule 14 details the medical conditions where a woman can opt for surrogacy such as if she has no uterus or an abnormal uterus or if the uterus is surgically removed due to a medical condition such as gynecological cancer. Has gone.
The bench appreciated the Center for taking up the issue in the “right spirit” and issuing notification amending the surrogacy rules.
In its notification dated February 21, the Center amended the surrogacy rules of 2022, allowing married couples to use donor eggs or sperm if one of the partners is suffering from a medical condition.
The Center had issued a notification in March 2023 banning donor gametes for couples seeking surrogacy.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)
