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TEAM CODE: 32

4TH NHRC LAW CENTRE I NATIONAL MOOT COURT COMPETITION, 2016

IN THE HONBLE SUPREME COURT OF INCA

WRIT PETITIONS NO _____/2016


UNDER ARTICLE 32 OF THE CONSTITUTION

PETITIONER

MARIA AND OTHERS


V.

RESPONDENT

UNION OF INCA AND ANOTHER

WRITTEN SUBMISSION ON BEHALF OF PETITIONERS

COUNSEL FOR THE PETITIONERS

Memorial for Petitioners

CONTENTS
LIST OF ABBREVIATIONS.......................................................................................................................
INDEX OF AUTHORITIES.......................................................................................................................
STATEMENT OF JURISDICTION...........................................................................................................
STATEMENT OF FACTS.........................................................................................................................
STATEMENT OF ISSUES.......................................................................................................................
SUMMARY OF ARGUMENTS................................................................................................................
WRITTEN PLEADINGS............................................................................................................................
1.

THE PRESENT PETITIONS ARE MAINTAINABLE...................................................................

2.

THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT

2015 IS CONSTITUTIONALLY INVALID...........................................................................................


2.1.

THE ACT

OF THE

2.2.

2.3.

TO

EQUALITY

GUARANTEED UNDER

ARTICLE 14

IS IN VIOLATION OF

RIGHT

TO

FREEDOM

GUARANTEED UNDER

ARTICLE 19

CONSTITUTION OF INCA.........................................................................................................

THE ACT

IS IN VIOLATION OF

RIGHT

TO

LIFE

AND

PERSONAL LIBERTY

GUARANTEED

UNDER ARTICLE

21 OF THE CONSTITUTION OF INCA.........................................................................

2.4.

IS IN VIOLATION OF THE

THE ACT

UNDER ARTICLE

3.

RIGHT

CONSTITUTION OF INCA...........................................................................................................

THE ACT

OF THE

IS IN VIOLATION OF

RIGHT

TO

FREEDOM

OF

RELIGION

GUARANTEED

25 OF THE CONSTITUTION OF INCA.........................................................................

THE PRACTICE OF SURROGACY IS NOT VIOLATIVE OF THE RIGHT AGAINST

EXPLOITATION GUARANTEED UNDER ARTICLE 23 OF THE CONSTITUTION OF


INCA......................................................................................................................................................
PRAYER-...................................................................................................................................................

Memorial for Petitioners

LIST OF ABBREVIATIONS
ABBREVIATIONS

EXPLANATION

/s
&

Section
And

A.I.R.

All India Reporter

A.L.J.

Allahabad Law Journal

Anr.
A.P.
Art.

Another
Andhra Pradesh
Article

Bom.

Bombay

Del.

Delhi

Ed.

Edition

Govt.

Government

Guj.

Gujarat

H.C.

High Court

Honble

Honourable

ICCPR

International Covenant on Civil and Political Rights

Ker.

Kerala

Ors.

Others

Punj.

Punjab

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

SCR

Supreme Court Reports

T.N.

Tamil Nadu

UDHR

Universal Declaration Of Human Rights

UOI

Union of India

W.B.

West Bengal

V.

Versus
INDEX OF AUTHORITIES
INDIAN CASES

1. A.B.S.K Sangh (Rly.) v. Union of India, A.I.R. 1981 S.C. 298.......................................................


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2. ABC v. The State (NCT of Delhi), A.I.R. 2015 S.C. 2569..........................................................


3. Air India v. Nargesh Meerza, (1981) 4 S.C.C. 335..........................................................................
4. Ajay Hasia v. Khalid Mujrib Sehravadi, (1981) 1 S.C.C. 722.........................................................
5. Ashok v. Union of India, A.I.R. 1997 S.C. 2298...........................................................................
6. Azizun Nisa. v. Asstt. Custodian, A.I.R. 1957 (All.) 561..............................................................
7. B. K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 (A.P.) 156.............................
8. Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84.........................................................
9. Board of Trustees of port of Bombay v. Dilipkumar R.Nandkarini, A.I.R. 1983 S.C. 109
.......................................................................................................................................................
10. Bombay Labour Union Representing the Workmen of International Franchises Pvt. Ltd. v.
International Franchises Pvt. Ltd., A.I.R. 1966 S.C. 942................................................................
11. Budhan Choudhary v. State of Bihar, A.I.R. 1955 S.C. 191............................................................
12. Chairman Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988.............................................
13. Charanjit Lal Chowdhary v Union of India, A.I.R. 1951 S.C. 41...................................................
14. Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C. 316, 35........................................
15. Delhi Transport Corporation v. DTC Mazdoor Congress, A.I.R. 1991 S.C. 101..........................
16. District Registrar & Collector v. Canara Bank, A.I.R. 2005 S.C. 186..........................................
17. EP Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 696...............................................................
18. Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578.................................................
19. Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344........................................
20. Githa Hariharan and Anr. v. Reserve Bank of India and Anr., A.I.R. 1999 S.C. 1149................
21. Government of Andhra Pradesh & Ors v. Smt. P. Laxmi Devi, A.I.R. 2008 S.C. 1640................
22. Hongkong & Shanghai Banking Corporation v. Union of India, W.P. No.388 of 2003..................
23. I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861..............................................................
24. Indian Financial Association of Seventh Day Adventures v. M.A. Unneerikutty, (2006) 6
S.C.C. 351......................................................................................................................................
25. Jan Balaz v. Anand Municipality and Ors., 2010 A.I.R. (Guj.) 21................................................
26. Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159...................................................
27. Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295......................................................
28. Kochunni v. State of Madras, A.I.R. 1960 S.C. 1080....................................................................
29. Lily Thomas v. Union of India , A.I.R. 2000 S.C. 1650................................................................
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30. Lord Krishna Sugar Mills Ltd. v. Union of India, A.I.R. 1959 S.C. 1124.....................................
31. Maneka Gandhi v. Union of India and Anr., (1978) 1 S.C.C. 248.............................................
32. Most Rev. PM.A Metropolitan v. Moran Mar Marthoma, A.I.R. 1995 S.C. 2001........................
33. Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430.............................................................
34. National Human Rights Comission v. Arunachal Pradesh, (1996) 1 S.C.C. 742..........................
35. National Human Rights Commission v. State of Arunachal Pradesh, A.I.R. 1996 S.C.1234
.........................................................................................................................................................
36. of Madras v. VG Row, A.I.R. 1952 S.C. 196...................................................................................
37. Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180..........................................
38. P.P. Enterprises v. Union of India. A.I.R. 1982 S.C. 1016.............................................................
39. Peoples Union of Democratic Rights v. Union of India, A.I.R. 1982 S.C. 3164..........................
40. Raghunath Rao, Ganpath Rao v. Union of India, A.I.R. 1993 S.C. 1267........................................
41. Ram & Shyam Co. v. State of Haryana, A.I.R. 1985 S.C. 1147......................................................
42. Ram Krishna Dalmiya v. Justice S.R Tendolkar, A.I.R. 1958 S.C. 538..........................................
43. Ram Prasad Narayan Sahi and Anr. v. The State of Bihar and Ors., (1953) 4 S.C.R. 1129
......................................................................................................................................................
44. Rameshwaral Haralka v. Union of India, A.I.R. 1970 (Cal.) 520.................................................
45. Ratilal v. State of Bombay, 1954 A.I.R. 388, 10.........................................................................
46. Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124............................................................
47. S. Vasudevan and Ors. v. S.D. Mital And Ors., A.I.R. 1962 (Bom.) 53........................................
48. Saifuddin v. State of Bombay, A.I.R 1962 S.C. 853......................................................................
49. Sarbananda Sonowal v. Union Of India, A.I.R. 2005 S.C. 2920...................................................
50. Sharma Transport v. Government of A.P. and Ors., (2002) 2 S.C.C. 188........................................
51. Shrilekha v. State of U.P, (1991) 1 S.C.C. 212................................................................................
52. State of A.P. v. Chella Ramakrishna Reddy, A.I.R. 2000 S.C. 2083..............................................
53. State of Tripura v. Niranjan Chakraborthy , (2001) 10 S.C.C. 740.................................................
54. Suchita Srivastava & Anr v. Chandigarh Administration, A.I.R. 2010 S.C. 235...........................
55. Supdt. v. Ram Manohar, A.I.R. 1960 S.C. 633..............................................................................
56. The Chairman Railway Board and Ors. v. Mrs. Chandrima Das and Ors, A.I.R. 2000 S.C.
988...................................................................................................................................................
57. The State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75...............................................
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58. Vishaka v State of Rajasthan, A.I.R. 1997 S.C. 3011...................................................................

FORIEGN CASES
1. Arver v. United States, 245 U.S. 366 (1918) (U.S.)......................................................................
2. Barnes v. Glen Theatre, 501 U.S. 560 (1991) (U.S.).....................................................................
3. Board of Education v. Barnette, 319 U.S. 624 (1943) (U.S.)........................................................
4. Bugdaycay v. Secretary Of State, (1987) 1 All E.R. 940 (Eng).....................................................
5. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (U.S.).........................................................
6. Eisenstadt v. Baird, 405 U.S. 438 (1972) (U.S).............................................................................
7. Gillette v. US, 401 U.S. 437 (1971) (U.S).....................................................................................
8. Griswold v. Connecticut , 381 U.S. 479 (1965) (U.S)...................................................................
9. Jack T. Skinner v. State of Oklahoma, 316 U.S. 535 (U.S)...........................................................
10. Murdock v. Pennsylvania, 319 U.S. 105 (1943) (U.S)..................................................................
11. Planned Parenthood South Eastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
(U.S)..............................................................................................................................................
12. R (Pretty) v. DPP, (2002) 1 All E.R. 1 (Eng.)................................................................................
13. Reynolds v. United States, 98 U.S. 145 (1879) (U.S.)..................................................................
14. Roe v. Wade, 410 U.S. 113 (1973).................................................................................................
15. Roe v. Wade, 410 U.S. 113 (1973) (U.S.)......................................................................................
16. Sharron A. Frontiero v. Eilliot L. Richardson, 411 U.S. 677 (U.S)...............................................
17. United Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891) (U.S)............................................

BOOKS REFERRED
2 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1569 (8th ed.
2007)......................................................................................................................................................
2 H.M.SEERVAI, CONSTITUTIONAL LAW 1271-88 (4th ed., 2013)....................................................
3 DURGA DAS BASU, COMMENTARY ON THE INDIAN CONSTITUTION, (8th ed., 2008)
...............................................................................................................................................................
P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 5526 (4th ed., 2010)...................................
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STATUTES, RULES AND REGULATIONS


ICMR guidelines for accreditation, supervision and regulation of ART clinics, 2016..............................
Constitution of India, 1949........................................................................................................................
The Indian Contract Act, 1872...................................................................................................................
INTERNATIONAL CONVENTIONS
International Covenant on Civil and Political Rights. United Nations General Assembly
Resolution 2200A [XX1]. 16 December 1966......................................................................................
The Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18,
1979.......................................................................................................................................................
U.N. Convention (2000) /Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the United Nations Convention Against
Transnational Organized Crime.............................................................................................................

LEGAL DATABASES
1.
2.
3.
4.
5.

www.manupatrafast.in
www.westlawindia.com
www.heinonline.org
www.scconline.com
www.lexisnexis.com

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STATEMENT OF JURISDICTION

The Petitioners, Maria, Association of Medical Practitioners of ART Clinics(AMPAC), All Inca
Mahila Samithi and Single Women (Professional Surrogates) Association, hereby submit to the
jurisdiction of the Honble Supreme Court of Inca under Article 32 the Constitution of Inca. The
Honble Court has the jurisdiction to adjudicate the present case.

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STATEMENT OF FACTS
John, a Christian US national, married Maria, a Hindu Incan national, in 2009. Maria moved to
US and acquired US citizenship in 2014. Being unable to conceive naturally, the couple decided
to have a child through surrogacy and entered into an agreement with Seema, a 25 year old
housemaid and mother to a four year old son, through an ART clinic XYZ ART clinic.
In November 2015, Inca passed a new law:

Commercial Surrogacy for Foreigners

(Miscellaneous) Act, 2015' which had the following provisions:

It banned the ART Clinics from providing surrogacy treatment to foreign nationals.

It was made an offence punishable with a fine of Rs.five lakhs or imprisonment for a
period of 1 year or both, in addition to cancellation of license of the Clinic.

The above provision was not applicable to Incan nationals and Non-Resident Incans
(NRIs) and People of Incan Origin (PIOs).

It declared that a single woman or an unmarried woman is prohibited to be either a


surrogate mother or a commissioning parent.

It declared that the dealings between commissioning parents and the surrogate woman
would be on principal-to-principal basis without any liability or involvement of ART
Clinics.

Further, it said that if ART Clinics facilitate agreements between the intending parties,
they would not charge any fee or commission.

Consequently XYZ ART clinic refused render services to Maria because of concerns over
Seema's eligibility to be a surrogate and the fact that John is a foreign national. Other ART clinics
refused on similar grounds. Maria filed a writ petition in the S.C of Inca challenging the
constitutionality of the Act on the grounds of it being violative of fundamental rights as well as
principles of natural justice. The Association of Medical Practitioners of ART Clinics (AMPAC)
filed a petition challenging the Act as being violative of their fundamental right under Article 19
(1) (g) of the Constitution. The All Inca Mahila Samithi filed a writ petition challenging the Act
as being violative of the right to livelihood guaranteed under Article 21 of the Constitution of
Inca. Single Women (Professional Surrogates) Association filed a writ petition challenging the
provision which restricts the right of single woman to act as surrogate as being violative of their
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rights. The Association of Custodians of Traditional Ethics showcased support for the new law
and filed a petition seeking complete ban on surrogacy. The Supreme Court of Inca admitted all
the petitions and decided to hear them together.
STATEMENT OF ISSUES

1. Whether the present petitions by Maria, AMPAC, All Inca Mahila Samithi and Single Women
(Professional Surrogates) Association are maintainable.
2. Whether the Commercial Surrogacy for Foreigners (Miscellaneous) Act 2015 is
constitutionally valid.
2.1. Whether the Act is in violation of Right to Equality guaranteed under Article 14 of the
Constitution of Inca.
2.2. Whether the Act is in violation of Right to Freedom guaranteed under Article 19 of the
Constitution of Inca.
2.2.1. Whether the Act is in violation of Right to Freedom of Speech and Expression
guaranteed under Article 19 (1) (a).
2.2.2. Whether the Act is in violation of Right to Freedom of occupation, trade or
business.
2.3. Whether the Act is in violation of Right to Life and Personal Liberty guaranteed under
Article 21 of the Constitution of Inca.
2.4. Whether the Act is in violation of Right to Freedom of Religion guaranteed under Article
25 of the Constitution of Inca.
3. Whether the practice of surrogacy is violative of the Right against Exploitation guaranteed
under Article 23 of the Constitution of Inca.

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SUMMARY OF ARGUMENTS

The Present Petitions by Maria, AMPAC, All Inca Mahila Samithi and Single Women
(Professional Surrogates) Association Are Maintainable.
1.

THE PETITION IS MAINTAINABLE.

The petitioners Fundamental Rights have been violated by the Act and they can approach the SC
under Article 32 of the Constitution. Petitioner 1 (Maria) She has the locus standi to approach the
SC under Article 32 of the Constitution despite being a foreign national because the Fundamental
rights are available to non-citizens as well as citizens. Furthermore the Supreme Court is the
appropriate forum for the present matter because Art. 32 is a fundamental right in itself which
appoints the SC as the guarantor and protector of fundamental rights. The petitioners can
approach the SC under Art. 32 without resorting to the concerned H.C under Art. 226 first.
2.

THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT IS ULTRA


VIRES THE CONSTITUTION.

2.1.

The Act is in violation of Art. 14.

The Commercial Surrogacy for Foreigners (Miscellaneous) Act 2015 is not Constitutionally
valid. The Act infringes upon Fundamental Rights guaranteed in Part III of the Constitution and
is therefore unconstitutional and liable to be struck down as per Article 13 of the Constitution of
Inca.
The petitioners Right to Equality guaranteed under Article 14 of the Constitution has been
violated. The impugned Act discriminates against foreign nationals, persons married to foreign
nationals and single women in the matter of parenthood. It disallows foreign nationals and single
women from availing surrogacy services and single women from being surrogate mothers
without any rational basis. The law does not fulfil the twin tests of intelligible differentia and
rational nexus. It is arbitrary and should be struck down under Art. 13 for being in derogation
with Art. 14 of the Constitution.
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2.2. The Act is in violation of Art. 19.


Right to Freedom guaranteed under Article 19 of the Constitution of Inca has been violated by
the impugned Act. The petitioners right of bodily expression through reproduction included
under the freedom of Speech and Expression guaranteed under Article 19(1) (a) has been
unreasonably curtailed through the questioned Act. The Right to Freedom of Trade and
Profession guaranteed under Article 19 (1) (g) has been infringed by the provisions which restrict
the ART clinics from providing surrogacy services to foreigners and persons married to foreigner
nationals on the pain of imprisonment and fine.
2.3.The Act is in violation of Art. 21.
The Act is also in violation of Right to Life and Liberty guaranteed under Article 21 of the
Constitution of Inca as it takes away the livelihood of single Incan surrogates. The Right to
motherhood and Right to bodily autonomy guaranteed under Article 21 have also been violated
by the impugned Act.
2.4.The Act is in violation of Art. 25.
Motherhood is an essential element of the petitioners religion which is being unreasonably
curtailed by the Act. It is thus in violation of Right to Freedom of conscience and free profession,
practice and propagation of religion guaranteed under Article 25.
3. THE PRACTICE OF SURROGACY IS NOT IN VIOLATION OF ART. 23.
The practice is not violative of the Right against Exploitation guaranteed under Article 23 of the
Constitution of Inca. The practice of surrogacy is not in violation of the Prohibition of traffic in
human beings and forced labour guaranteed under Article 23 of the Constitution because
surrogacy is a legal contract entered into by consenting adults and is not an exploitative practice
in itself.

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WRITTEN PLEADINGS
1. THE PRESENT PETITIONS ARE MAINTAINABLE

Art.32 of the Constitution of Inca guarantees the right to move the S.C. by appropriate
proceedings for the enforcement of the rights conferred by Part III of the constitution i.e.
fundamental rights. The Art.32 (2) reads, The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.

In the present matter the petitioners; Maria, Association of Medical Practitioners of ART Clinics
(AMPAC), All Inca Mahila Samithi and Single Women (Professional Surrogates) Association;
(hereinafter Petitioner 1, 2, 3 and 4 respectively) have filed writ petitions under Art.32 of the
constitution of Inca which is maintainable.

The Fundamental rights of the Petitioner Maria, particularly Right to equality guaranteed under
Art.14, Right to Life and Liberty under Art.21, Right to Religion under Art.25, has been violated
by the Commercial Surrogacy for Foreigners(Miscellaneous) Act 2015, (hereinafter the
'Impugned Act) and she has moved to the SC for appropriate remedy. Petitioner 1 has the locus
standi to approach the Supreme Court under writ jurisdiction despite being a foreign national
because the rights under Articles 14, 21 and 25 are available to all persons and not merely
citizens of Inca.

The Art.14 of the constitution speaks of Equality before law. It says- The State shall not deny to
any person equality before the law or the equal protection of the laws within the territory of
India.

The Art.21 of the constitution which speaks of protection of life and personal liberty says- No
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person shall be deprived of his life or personal liberty except according to procedure established
by law.

The Art.25 speaks of freedom of conscience and free profession, practice and propagation of
religion. Art.25 (1) says - Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion.

All these provisions clearly state that, the rights guaranteed are available to 'persons' and not
merely 'citizens'. The Fundamental Rights are available to all the "Citizens" of the country but a
few of them are also available to "persons". Art.14 which guarantees equality before law or the
equal protection of laws within the territory of India is applicable to "person" who would include
the "citizen" of the country and "non-citizen" both. According to the tenor of the language used
in Article 21, it will be available not only to every citizen of this Country, but also to a "person"
who may not be a citizen of the country.1 So far as Articles 14 and 21 are concerned, the
expression 'citizen' has been omitted and the fundamental right guaranteed under these Articles
protect the citizens and non-citizens alike.2 It is evident from the language, tone and purport of
these fundamental rights that they were intended to be available to all persons which include
citizens of Inca as well as non-citizens and the petitioner 1can claim their protection.

The Fundamental Rights of petitioners Petitioner 2, Petitioner 3 and Petitioner 4 namely Right to
equality under Art.14, Right to Life and Liberty under Art.21, Right to freedom of Speech and
Expression under Art.19 (1) (a) and Right to freedom of Trade and profession under Art.19 (1)
(g) have been violated by the Impugned Act and they have approached the SC for remedy. Any
person whose Fundamental right has been violated, or who fears that his fundamental right will
be violated can approach the SC under Art.32 of the Incan Constitution, provided he lies under its
jurisdiction.
1The Chairman Railway Board and Ors. v. Chandrima Das and Ors, A.I.R. 2000 S.C. 988.
2Hongkong & Shanghai Banking Corporation v. Union of India, W.P. No.388 of 2003.
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Arguendo, the nature of these associations does not hold relevance for their locus standi because
even an unregistered association can maintain a petition for relief under Art.32 of the
Constitution if there is a common grievance. In A.B.S.K Sangh (Rly.) v. Union of India3, the S.C.
overruled the objection that an unrecognised association cannot file a petition under Art.32. It
said that whether the petitioners belong to a recognised association or not, the fact remains that a
large body of persons with a common grievance exist and they have approached the Supreme
Court under Art.32. Art.32 is not only to protect individuals fundamental rights but is capable of
doing justice wherever it is found and the society has an interest in it. If a plaintiff with a good
case is turned away merely because he is not sufficiently affected personally, that means that
some government agency is left free to violate the law and this is contrary to public interest. 4

It is submitted that it is not necessary for the petitioners to approach the concerned H.C. under
Art.226 before moving to the SC under Art.32 of the Constitution. This is so because unlike
Art.226, Art.32 itself confers a Fundamental Right on the individual and imposes an obligation
on the SC which it must discharge when a person complains of infringement of Fundamental
Rights5. Art.32 provides a guaranteed remedy for the enforcement of the fundamental rights and
constitutes the SC as the 'guarantor and protector of Fundamental rights'. This has been reiterated
by the SC in a number of cases6. It is also the contention of the petitioners that the decision of the
court in Kanubhai Brahmbhatt v. State of Gujarat7, where it said that a petitioner complaining of
an infraction of a Fundamental Right should approach the HC first rather than the SC in the first
instance is inapplicable in the present matter. The decision delivered by a Two Judge Bench
cannot be regarded as an authoritative pronouncement on an important constitutional issue.
Further it is evident that in practice the Kanubhai judgement has had no effect on the existing
practices and the writ petitions continue to be filed in the SC under Art.32 without first going to
3A.B.S.K Sangh (Rly.) v. Union of India, A.I.R. 1981 S.C. 298.
4Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344.
5Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.
6State of Madras v. VG Row, A.I.R. 1952 S.C. 196; See also, Kharak Singh v. State of Uttar
Pradesh, A.I.R. 1963 S.C. 1295.
7Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159.
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the HC under Art.226.


Alternative remedy is a rule of convenience, not of law 8. The existence of alternate remedy is no
bar to entertain petition under Art.329. Where gross injustice is done justifying interference, the
existence of alternative remedy by way of appeal or repeal would be no bar to exercise the writ
jurisdiction under Art.3210. In the instant case the impugned enactment is violating the
fundamental rights of the stakeholders and hence it results in gross injustice.
With regard to the contention as to availability of remedy under Art.226 the S.C. opined thus in
Romesh Thappar v State of Madras11 Art.32 provides a guaranteed remedy for enforcement of
those rights and these remedial rights is itself made a fundamental right being included in Part
III. This court is thus constituted the protector and guarantor of fundamental rights, and it
cannot, consistently with the responsibility so laid upon it, refuse to entertain application seeking
protection against infringement of such rights. Art.226 (4) itself lays down that the powers
conferred on the H.C. shall not be in derogation to the powers conferred on the S.C. by virtue of
Art.32. 12

The Fundamental rights of the petitioners having been violated, they have the locus standi to
approach the S.C and therefore their writ petition is maintainable.
2. THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS)
ACT 2015 IS CONSTITUTIONALLY INVALID.
2.1.

THE ACT

IS IN VIOLATION OF

RIGHT

TO

EQUALITY

GUARANTEED UNDER

ARTICLE 14 OF THE CONSTITUTION OF INCA.

It is humbly submitted before this honourable court that the Impugned Act, is in violation of the
8 Ram & Shyam Co. v. State of Haryana, A.I.R. 1985 S.C. 1147.
9 Vishaka v State of Rajasthan, A.I.R. 1997 S.C. 3011.
10State of Tripura v. Niranjan Chakraborthy , (2001) 10 S.C.C. 740.
11Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.
12 Id.
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petitioners Right to Equality guaranteed under Art.14 of the Constitution of Inca.

Art.14 of the constitution of Inca states that: The state shall not deny to any person equality
before the law or equal protection of the laws within the territory of Inca

The doctrine of equality enshrined in Art.14 of the Constitution which is the basis of rule of law
is the basic structure of the constitution13. Every person was entitled to equal treatment and equal
protection of laws and the State was bound to protect every human being from inequality14.

In the present matter, the impugned legislation is in clear violation of the Right to equality
guaranteed to the petitioner 1. Equality is antithetic to arbitrariness...Where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic and constitutional law and is
therefore in violation of Art.1415. It is well established through several cases 16 that Art.14 does
not rule out classification for the purpose of legislation. However for the purpose of preventing
legislative overreach the judiciary developed a test by which it is determined whether a
legislative classification is reasonable. In order to pass the test, two conditions must be fulfilled,
namely that the classification must be founded on an intelligible differentia which distinguishes
those that are grouped together from others and that that differentia must have a rational relation
to the object sought to be achieved by the Act17.

The provisions of the Act forbid the Incan ART clinics from providing surrogacy treatment to
foreign nationals and make it a punishable offence. It is submitted that the law is arbitrary in
nature and the test of intelligible differentia has not been satisfied because differences in
13Raghunath Rao, Ganpath Rao v. Union of India, A.I.R. 1993 S.C. 1267.
14National Human Rights Commission v. State of Arunachal Pradesh, A.I.R. 1996 S.C.1234.
15EP Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 696.
16Charanjit Lal Chowdhary v Union of India, A.I.R. 1951 S.C. 41; Budhan Choudhary v. State
of Bihar, A.I.R. 1955 S.C. 191, Ram Krishna Dalmiya v. Justice S.R Tendolkar, A.I.R. 1958 S.C.
538.
17The State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75.
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treatment can be justified only by relevant differences between individuals. The classification
should never be arbitrary, artificial or evasive. It must rest always upon real and substantial
distinction bearing a reasonable and just relation to the thing in respect to which the classification
is made; and classification made without any reasonable basis should be regarded as
invalid18.There is no intelligible difference between Incan commissioning couples and foreign
nationals who commission surrogate mother's services in so much that they are both, by a stroke
of fate, placed in a disadvantaged position of being unable to conceive naturally and seek to
remedy it by making optimal use of technological advancements. It is inherently unfair to deny
the benefits of parenthood through surrogacy to foreign nationals alone whereas similarly placed
Incan nationals, NRIs and OCIs can freely avail the facility.

It would also be improper to distinguish between Incan and foreign commissioning parents on
the basis of economic disparity or for the fear that foreign couples may economically coerce
Incan women into entering surrogacy agreements. This is so because commercial surrogacy is a
pricey affair and commissioning parents, regardless of nationality, will be from similar strata of
society. Incan and foreign couples are in an equal position with respect to exerting economic
pressure on the women acting as surrogates to enter into agreements which may be
disadvantageous to them. Wise legislative decision in such circumstances would have been to
create strict regulations for the surrogacy industry on the whole rather than arbitrarily banning
surrogacy only for foreign national meanwhile leaving the sector unregulated and prone to
exploitation.

It is improper to deny surrogacy services to foreign nationals on the grounds that regulation is
difficult and there arise complications in recognition of legal status of transnational surrogate
child. The issues surrounding citizenship and nationality of a surrogate child are bound to arise in
a situation where Incan commissioning parents seek to migrate along with their child to a country
which does not recognise surrogacy or out rightly bans it. Welfare of a surrogate child can be
endangered by even Incan couples should they refuse to accept a child born with disabilities, or a
child of a particular gender or in the event both the commissioning parents die or divorce before
18Id.
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the birth of the child. The rights and welfare of a surrogate mother can be infringed by an Incan
couple just as much as a foreign couple when she is denied remuneration for her time in the event
of an unsuccessful pregnancy or an abortion due to medical complications affecting her health. It
is thus greatly inequitable and puzzling that the legislature has arbitrarily chosen to ban
commercial surrogacy for foreigners thereby infringing upon the right to equality of foreign
commissioning parents rather than regulating the practice which would have been conducive to
the welfare of the stakeholders. It is true the presumption is in favour of the constitutionality of a
legislative enactment and it has to be presumed that a Legislature understands and correctly
appreciates the needs of its own people. But when on the face of a statute there is no
classification at all, and no attempt has been made to select any individual or group with
reference to any differentiating attribute peculiar to that individual or group and not possessed by
others, this presumption is of little or no assistance19.

A legislation which creates classifications and treats those classes differently is only relevant and
fair if it bears an empirical relationship to the purpose of the rule. In the absence of a preamble or
an objective clause it can be reasonably assumed than the intention of the legislature was to tend
to the welfare of the parties involved in surrogacy i.e. the surrogate mother, the commissioning
parents and the surrogate child. The impugned Act does not succeed in this respect because the
welfare of a section of the stakeholders i.e. foreign commissioning parents has been completely
ignored. It is also naivety on part of the legislature to believe that forbidding foreign couples
from engaging surrogacy will protect the surrogates interests. It has been observed by the
surrogates themselves that foreign couples offer higher remuneration than Incan couples and
prove to be an important source of foreign exchange. Furthermore by banning foreign
commercial surrogacy rather than regulating it, the prospect of trafficking of surrogates and
mushrooming of illegal ART clinics arises. Thus the legislative classification in the impugned
Act, being arbitrary and capricious, does not have a rational nexus with the ultimate purpose of
the legislation. If the classification is not reasonable and does not satisfy the two conditions
(intelligible differentia and rational nexus with the object), the impugned legislation or executive
action would plainly be arbitrary and the guarantee of equality under Art.14 would be breached.
19Ram Prasad Narayan Sahi v. The State of Bihar, (1953) 4 S.C.R. 1129.
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Whenever there is arbitrariness in state action.... Art.14 immediately springs into action and
strikes down such state action20.

What Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily
involve negation of equality21. In the present matter it is submitted that the provision of the
impugned Act which prohibits single and unmarried women from being surrogates or a
commissioning parent is an arbitrary provision which falls foul of Art.14 of the Constitution.

The question whether an impugned Act is arbitrary or not is ultimately to be answered on the
facts and in the circumstances of a given case. An obvious test to apply to see whether there is
any discernible principle emerging from the impugned Act and if so, does it satisfy the test of
reasonableness22. The effect emanating from this provision of the impugned Act is to deny single
women the right to parenthood through surrogacy whereas no such restriction has been placed on
married women or single men. At a time when single parenthood is on the rise this provision is
highly discriminatory and without any sound rationale. The law is dynamic and is expected to
diligently keep pace with time and the legal conundrums and enigmas it presents and in today's
society, where women are increasingly choosing to raise their children alone, no purpose is seen
in imposing an unwilling and unconcerned father on an otherwise viable family nucleus 23.
Classification based on marital status, depriving a mother's guardianship of a child during the life
time of the father, cannot but be stated to be a prohibited marker 24. It is logically unsound and
against empirical evidence to believe that married women are better equipped to be mothers to
children and it is clearly against the right to equality to deny motherhood through surrogacy to
single women.

20Ajay Hasia v. Khalid Mujrib Sehravadi, (1981) 1 S.C.C. 722.


21Id.
22Shrilekha v. State of U.P, (1991) 1 S.C.C. 212.
23ABC v. The State (NCT of Delhi), A.I.R. 2015 S.C. 2569.
24Githa Hariharan v. Reserve Bank of India, A.I.R. 1999 S.C. 1149.
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The SC in Vishaka v. State of Rajasthan25 held that International Conventions and norms are
significant for the purpose of interpretation of the guarantee of gender equality.... The
Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) 26
directs all State parties to take appropriate measures to prevent discrimination of all forms
against women and the Act in question is clearly in derogation of that. Noting that gender
equality is one of the basic principles of our Constitution the S.C held in Githa Hariharan v.
Reserve Bank of India27, that the mother is the natural guardian of the minor. In the same case
court said that the father by reason of a dominant personality cannot be ascribed to have a
preferential right over the mother in the matter of guardianship since both fall within the same
category and doing so would definitely run counter to the basic requirement of the constitutional
mandate thereby leading to a differentiation between male and female. The Court has also opined
in the recent decision of ABC v. The State (NCT of Delhi)28 that avowedly, the mother is best
suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word
'mamta'.

Moreover, since sex, like race and national origin, is an immutable characteristic determined
solely by the accident of birth, the imposition of special disabilities upon the members of a
particular sex because of their sex would seem to violate the basic concept of our system that
legal burdens should bear some relationship to individual responsibility 29. The legislative
provision in this case, by denying surrogacy to single women but not to single men has
propagated discrimination between the two genders and is completely unreasonable. This
provision falls foul of Art. 15 which prohibits discrimination based on sex alone and is not saved
by any of its clauses.

25Vishaka v. State of Rajasthan , A.I.R. 1997 S.C. 3011.


26The Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18,
1979.
27Supra note 19.
28ABC v. The State (NCT of Delhi), A.I.R. 2015 S.C. 2569.
29Sharron A. Frontiero v. Eilliot L. Richardson, 411 U.S. 677 (U.S).
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The principle of reasonableness, which legally as well as philosophically, is an essential element


of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence 30. In order to
be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary.
The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or
at pleasure, without adequate determining principle, not founded in the nature of things, nonrational, not done or acting according to reason or judgment, depending on the will alone 31.
Art.14 is a part of the rule of law and it is the duty of the judiciary to enforce the rule of law32.

It is submitted that the legislative provision restricting single women from acting as surrogate
mothers is not founded in sound judgement and is arbitrary and capricious thus falling foul of the
right to equality guaranteed in Art.14 of the Constitution. There is no acceptable rationale for
fixing marital status as an eligibility criterion to be a surrogate and the provision is utterly
whimsical. In these days when single motherhood is on a rise and the social stigma attached to
extra marital pregnancy is lessening there is no justification in adhering to traditional
conservatism and denying single woman their right to be treated at par with married women.
Classification based on marital status would be a prohibitive marker33.

Striking down a rule, by which a married air hostess of Air India would have to retire earlier than
an unmarried air hostess, as being unjust and discriminatory the SC held in Air India v. Nargesh
Meerza34 that Such a morbid approach is totally against our ancient culture and heritage as a
woman in our country occupies a very high and respected position in the society as a mother, a
wife, a companion and a social worker. (Such rules are )...in bad taste and is proof positive of
denigration of the role of women and a demonstration of male chauvinism and verily involves
nay discloses an element of unfavourable bias against the fair sex which is palpably unreasonable
30Maneka Gandhi v. Union of India and Anr., (1978) 1 S.C.C. 248.
31Sharma Transport v. Government of A.P, (2002) 2 S.C.C. 188.
32I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861.
33Githa Hariharan v. Reserve Bank of India, A.I.R. 1999 S.C. 1149.
34Air India v. Nargesh Meerza, (1981) 4 S.C.C. 335.
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and smacks of pure official arbitrariness. In Bombay Labour Union Representing the Workmen of
International Franchises Pvt. Ltd. v. International Franchises Pvt. Ltd.35, the Court while dealing
with a rule barring married women from working in a particular concern expressed the view We
are not impressed by these reasons for retaining a rule of this kind. Nor do we think that because
the work has to be done as a team it cannot be done by married women.

Thus the judiciary has clearly and decisively stated that marital status of a woman does not affect
her competency and ability to carry out her professional duties. The provision in question is
clearly biased and does not conform to norms of equity. It imposes penalty upon women for
failing to enter into the social construct of marriage, the absence of which does not affect their
ability to carry out the task at hand i.e. surrogacy. A legislative differentiation must not be
arbitrary and should rest upon a rational basis, having regard to the object which the legislature
has in view36. Both married surrogates and single surrogate constitute the same class or category
of service and hence any difference between the members in the same class, being hostile
discrimination, is clearly violative of Art.14 of the Constitution.
2.2. THE ACT

IS IN VIOLATION OF

RIGHT

TO

FREEDOM

GUARANTEED UNDER

ARTICLE 19 OF THE CONSTITUTION OF INCA.


2.2.1. The Act is in violation of Right to Freedom of speech and expression
guaranteed under Article 19 (1) (a).

The impugned Act violates the Right to freedom of Speech and Expression of the surrogate
mothers under Art.19 (1) (a) and does so without serving any public interest or purpose.
Expression through body is part of fundamental right of Speech and Expression which is being
unreasonably denied. Freedom of speech and expression includes symbolic speech or
expressive conduct.37 Nude dancing has been held to be included as expressive conduct 38.In

35Bombay Labour Union Representing the Workmen of International Franchises Pvt. Ltd. v.
International Franchises Pvt. Ltd., A.I.R. 1966 S.C. 942.
36Ram Prasad Narayan Sahi v. The State of Bihar and Ors., (1953) 4 S.C.R. 1129.
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Roe v. Wade,39 the Court had decided that every woman has the right to take a decision with
respect to how her body is to be used, and therefore a woman has the right to enter into a contract
of commercial surrogacy.

In the famous case of Griswold v. Connecticut40, the court emphasised that a person can express
through their body without any prevention from the Government. This and other cases view the
right to privacy as a right to "protection from governmental intrusion."

In the present case, the right to freedom of speech and expression is to be read with right to self
determination and personal liberty. Self-determination is defined as free choice of ones own acts
without external compulsion; and especially as the freedom of the people to determine their own
status. It can also be defined as the ability or power to make decisions for oneself, especially the
power of a nation to decide how it will be governed. The surrogates right to self-determination
should not be tampered with as she has the right to decide for herself what is right for her own
body and what is not.

Anything which is not mentioned under Art.19 (2) being denied is an unreasonable restriction.
Under Art.19 (2) reasonable restrictions can be imposed on the exercise of this right for certain
purposes. It must relate to any of the grounds of restriction specified in clause (2) of Art. 19 and
such relationship must be proximate and not remote. 41 Any limitation on the exercise of the right
under Art.19 (1) (a) not falling within the four corners of Art.19 (2) cannot be valid. The only
grounds under which freedom of expression guaranteed by clause (1) (a) of Art. 19 can be
abridged are those mentioned in clause (2). If a law directly affecting is challenged, it is no
372 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1569 (8th
ed. 2007).
38Barnes v. Glen Theatre, 501 U.S. 560 (1991) (U.S.).
39Roe v. Wade, 410 U.S. 113 (1973) (U.S.).
40Griswold v. Connecticut , 381 U.S. 479 (1965) (U.S).
41Supdt. v. Ram Manohar, A.I.R. 1960 S.C. 633.
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answer that the restrictions imposed by it are justifiable under clause (3) to (6). 42 Freedom of
Speech and expression includes the expression of ones idea through any communicable medium
or visible representation. The human body is one such medium.

Courts have always placed a broad interpretation on the value and content of Art. 19(1) (a),
making it subjective only to the restrictions permissible under Art.19 (2). Furthermore, the
reasonableness of restriction is to be judged today and in the circumstances now existing and
future possibilities are irrelevant.43 But in the present case, the restriction made under the act
prohibiting single woman or unmarried woman does not fall under any category mentioned in
Art. 19 (2), making it an unreasonable restriction and is liable to be struck down.
2.2.2. The Act is in violation of Right to Freedom of trade, occupation or
business guaranteed under Article 19 (1) (g).

It is humbly submitted before this Honble Court that the fundamental rights of petitioner 2 under
Art. 19(1)(g) of the Constitution of India has been violated.

Any restriction imposed by the state by any law on the right guaranteed under Art. 19(1)(g) can
be challenged on the ground either that the restriction is unreasonable, or that the restriction is in
excess of the right, or that even activities which are not pernicious or that the procedure laid
down for curbing any activity is unjust, arbitrary or unreasonable.44

Art.19 (1) (g) of Constitution of India provides Right to practice any profession or to carry on
any occupation, trade or business to all citizens subject to Art.19 (6) which enumerates the nature
of restriction that can be imposed by the state upon the above right of the citizens. A restriction to
be valid must have a direct nexus with the object which the legislation seeks to achieve and the

42Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578.


43Lord Krishna Sugar Mills Ltd. v. Union of India, A.I.R. 1959 S.C. 1124.
44Rameshwaral Haralka v. Union of India, A.I.R. 1970 (Cal.) 520.
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restriction must not be excessive.45 The reasonableness of the restraint would have to be judged
by the magnitude of the evil which is the purpose of the restraint to curb or to eliminate. 46 There
should be a balance between the freedoms guaranteed under Art.19 and the restrictions implied
on them through clauses (2) to (6) of Art.19. What is considered is whether the restrictions
imposed by legislation on the Fundamental Rights are disproportionate to the situation and are
not the least restrictive of the choices. It is direct, inevitable and real, not the remote effect of
the legislation on the Fundamental Right which is to be considered.47

In the case at hand the impugned Act is unreasonable as it is not based on medical grounds and
illogical considerations were followed. Because of this the ART Clinics suffered immensely as
foreign couples formed a big part of their clientele. The Act also unreasonably prevents the
optimal use of technological advancements. Surrogates also enjoy better remuneration while
providing the service to foreign nationals and provide foreign exchange for the economy. The Act
hinders with the fundamental rights of the petitioners and also hinders with the countrys
economy on irrational grounds. Reasonableness of the restriction and not of the law which
permits it should be ascertained.

Art.19(6) provides certain exceptions to the provision. These exceptions relate to-

(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise.

45Kochunni v. State of Madras, A.I.R. 1960 S.C. 1080.


46Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C. 316, 35.
47Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578.
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Infringement of fundamental rights under Art. 19 (1) (g) can only be excused on certain grounds
mentioned in clauses (6) of Art.19. 48 But in the present case, none of the above two conditions
are fulfilled. There has been no professional or technical qualification that has been applied for a
surrogate or an ART clinic. Neither has there been any government owned or controlled
corporation that will fulfil the duties of the doctors and the ART clinics. Hence the Act violates
the fundamental rights of the petitioners under Art. 19 (1) (g) based on unreasonable restrictions
and should be struck down.

A restriction to be reasonable must also be consistent with Art. 14 of the Constitution since the
restrictions cannot be arbitrary or excessive. The expression reasonable restriction signifies
that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of
an excessive nature beyond what is required in the interest of the public. 49 A law may be
reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.
Once it is assumed that the impugned legislation imposes a restriction on the freedom of trade,
the burden is on those who support it to show that the restriction imposed is reasonable and in the
interests of general public. The burden is on those who seek the protection of Art.19 (6) and not
on the citizen who challenges the restriction. The SC has also emphasized that the greater the
restriction, the more the need for strict scrutiny by the Court.50
2.3. THE ACT

IS IN VIOLATION OF

GUARANTEED UNDER ARTICLE

RIGHT

TO

LIFE

AND

PERSONAL LIBERTY

21 OF THE CONSTITUTION OF INCA.

Right to Life is the most fundamental of all human rights, and any decision affecting human life
or putting a human life at risk must call for the most anxious scrutiny. 51 Art.21 of the Incan
constitution bestows upon every citizen and non-citizen right to life and liberty.52 The sanctity of
48Azizun Nisa. v. Asstt. Custodian, A.I.R. 1957 (All.) 561.
49P.P. Enterprises v. Union of India. A.I.R. 1982 S.C. 1016.
50Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430.
51Bugdaycay v. Secretary Of State, (1987) 1 All E.R. 940 (Eng).
52INCA CONST. art. 2.
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Human Life is the most fundamental of all human social values. 53 Right to life is one of the most
basic human rights and not even the state has authority to violate this right. 54 No Right is held
more sacred or is more carefully guarded by the common law than the right of every individual
to the possession and control of his own person free from all restraint or interference of others,
unless by clear and unquestionable authority of law.55

Petitioner 3 is an interest group for Incan women. The right to livelihood is included under the
Right to Life56. The Act by banning women from being surrogates for foreigners affects their
business in a substantial manner. No person can live without his or her livelihood and this act
robs surrogate women of their livelihood clearly violating their Right to Life 57.The law which
mercilessly snatches the right to livelihood of the surrogate women is not fair, just and
reasonable but is oppressive and vagary.58

The legislature is free to experiment with respect to exercising its powers provided it does not
fragrantly violate its constitutional limits. 59 In this case the legislature has in the process of
exercising its power has violated one of the fundamental rights of every citizen, the Right to Life.

Motherhood is every womans dream. The ability to give birth and raise a child is one of the
most beautiful feelings of womanhood. Unfortunately not all women can conceive owing to
various reasons and the petitioner 1 is one such woman. Fortunately technology and
advancements in science have made it possible for every woman to experience this joy. However
53R (Pretty) v. DPP, (2002) 1 All E.R. 1 (Eng.).
54State of A.P. v. Chella Ramakrishna Reddy, A.I.R. 2000 S.C. 2083.
55United Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891) (U.S).
56Board of Trustees of port of Bombay v. Dilipkumar R.Nandkarini, A.I.R. 1983 S.C. 109;
Ashok v. Union of India, A.I.R. 1997 S.C. 2298.
57Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180.
58Delhi Transport Corporation v. DTC Mazdoor Congress, A.I.R. 1991 S.C. 101.
59Government of Andhra Pradesh & Ors v. Smt. P. Laxmi Devi, A.I.R. 2008 S.C. 1640.
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due to the Act, ART clinics refused to provide her with the necessary services because she is
married to a foreigner. Despite the fact of being a person of Incan origin she was not allowed to
avail surrogate services. The Incan constitution bestows the right to life for foreigners under
Art.21.60 Choosing to be a mother is an extremely personal choice. No person except the woman
concerned should have a right in deciding whether she can or cannot be a mother. In the instant
case the law that prohibits Petitioner 1 from becoming a mother through surrogacy violates her
Right to life. It is also grossly violative of her right to personal liberty61.

The Right to procreate is one of the most basic civil rights of man 62. The provision of the Act
which prohibits single women from being surrogates is clearly violative of Art.21. Every woman
has a right to choose what happens to her body. She can choose to use it in whichever manner she
pleases. Third party interference with respect to this is a gross violation of her right to privacy
and right to life.63 It breaches the right of a single woman to be a mother as well as puts
unnecessary restraints on her choice of livelihood merely based on her marital status. Every
individual has the right to procreate irrespective of his or her marital status64.

It is violative of the surrogates Right to Liberty. Every woman has a right to reproduce. A
womans right to privacy, dignity and bodily integrity should be respected. There should be no
restraints with respect to exercise of reproductive choices.65 In this case the act is restraining the
surrogate from exercising her reproductive choice.
60National Human Rights Comission v. Arunachal Pradesh, (1996) 1 S.C.C. 742; Chairman
Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988; Sarbananda Sonowal v. Union Of India,
A.I.R. 2005 S.C. 2920.
61Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
62Jack T. Skinner v. State of Oklahoma, 316 U.S. 535 (U.S); B. K. Parthasarthi v. Government of
Andhra Pradesh, A.I.R. 2000 (A.P.) 156.
63Roe v. Wade, 410 U.S. 113 (1973) (U.S.); Planned Parenthood South Eastern Pennsylvania v. Casey, 505
U.S. 833 (1992) (U.S).

64Eisenstadt v. Baird, 405 U.S. 438 (1972) (U.S).


65Suchita Srivastava & Anr v. Chandigarh Administration, A.I.R. 2010 S.C. 235.
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As explained above the act in the instant case is violative of Art.14, 19 and 21. It also doesnt
qualify any of the conditions laid down by the District Registrar & Collector v. Canara Bank66,
case. In this case it was held that any law interfering with the personal liberty of a person had to
satisfy a triple test

i)

it must prescribe a procedure

ii)

the procedure must withstand the test of one or more fundamental rights conferred
under Art.19 which may be applicable in a given situation.

iii)

It must also be liable to be tested with reference to Art 14.

Clearly, in the instant case the enacted act does not qualify any of the conditions and hence is
unconstitutional.
2.4. THE ACT

IS IN VIOLATION OF THE

GUARANTEED UNDER ARTICLE

RIGHT

TO

FREEDOM

OF

RELIGION

25 OF THE CONSTITUTION OF INCA.

The Right to religion is one of the basic human rights every person is entitled to. 67 Petitioner 1
has a right to religion under Art.25 of the Incan constitution. Petitioner 1 is a Hindu by religion
and is blessed with the right to have children and procreate by her religion. Conscience and belief
are the bedrock of freedom of religion.68

The first petitioners religion attaches special importance to children and views childlessness as

66District Registrar & Collector v. Canara Bank, A.I.R. 2005 S.C. 186.
67International Covenant on Civil and Political Rights. United Nations General Assembly
Resolution 2200A [XX1]. 16 December 1966 art. 18; AUSTRALIA CONST. art. 116 ; SRI
LANKA CONST. art. 18.
68Gillette v. US, 401 U.S. 437 (1971) (U.S).
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inauspicious.69 Infertility in the Hindu system is thought of as a result of sins committed in the
previous lifetime. Infertile women are socially ostracized and are considered inauspicious 70.
Further in India children are seen as a source of happiness and security in old age. Children are
necessary to perform samaskaras and ensure that their parents attain moksha. Moksha or freedom
from rebirth is the ultimate goal of every Hindu.

Religious practices or performances of act in pursuance of religious belief are as much a part of a
religion as faith or belief in particular doctrines. 71 The Hindus genuinely and conscientiously
believe that the existence of ones own child is indispensable in the struggle to attain moksha.

In the instant case, Petitioner 1 a Hindu has the right to practice her religion through having a
child who can perform the necessary shastric rites for her. The act of her having a child is in
pursuance of her religious beliefs. The impugned Act which prohibits her from having children
when science and technology permits is flagrant violation of her right to religion.

Every person has a fundamental right not merely to entertain religious beliefs of his choice but
also to exhibit this belief and ideas in a manner, which does not infringe the religious right and
personal freedom of others.72 The Appellant merely was exhibiting her belief in the importance of
having a child as dictated by her religion.

Freedom of religious belief and to act in the exercise of such a belief cannot override the
interests of peace, order or morals of the society and to that extent the freedom of religion is
subject to control of the state.73 In the instant case the belief of the appellant in wanting to have a
69KIM KNOTT, HINDUISM: A VERY SHORT HISTORY, WADLEY, (1977) available at
http://www.jstor.org/stable/3173084 (last checked on Feb. 28 2016).
70Stapatha Brahmana, Grihya Sutras, available at http://www.sacred-texts.com/hin/ (last checked
on Feb. 28 2016).
71Ratilal v. State of Bombay, 1954 A.I.R. 388, 10.
72Lily Thomas v. Union of India , A.I.R. 2000 S.C. 1650.
73Board of Education v. Barnette, 319 U.S. 624 (1943) (U.S.).
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child of her own through surrogacy does not compete with the interests of peace, order or morals
of society. Clearly, the respondent has over reached their powers by interfering in matters of
religion and religious belief through the impugned Act.

Law cannot interfere with religious beliefs and opinion however they may interfere with
practices.74 In the instant case the appellant hails from a religion, which firmly believes the
necessity of having ones own children to carry out various religious rites. The appellant seeks to
propagate her religion through her child. Considering that the propagation of the appellants
religion does not transgress the limits imposed by law for the preservation of public order, safety
and morals, the state cannot deny her right to propagate her religion.75

This Honourable court has previously held that in the name of social reforms the state cannot
interfere with the essentials of a religion.76 In the case at hand clearly the state has taken the
defense of social reform while enacting the Impugned Act. The act of having ones own child to
perform all shastric rights for a Hindu is an essential part of his/her religion. This act clearly
encroaches upon the essential parts of Hinduism in the name of social reform. The legislature has
meddled with the basic and essential practices of Hinduism, which has previously been
condemned by this humble court.77

Art.25 (2) (b) sanctions social reform not religious reform. 78 In this case the respondents have
used their legislating powers and overstepped their boundaries by interfering in the activities of a
religion.

74Reynolds v. United States, 98 U.S. 145 (1879) (U.S.).


75Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (U.S.) ; Arver v. United States, 245 U.S.
366 (1918) (U.S.); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (U.S).
76Saifuddin v. State of Bombay, A.I.R 1962 S.C. 853.
77Id.; Most Rev. PM.A Metropolitan v. Moran Mar Marthoma, A.I.R. 1995 S.C. 2001.
782 H.M.SEERVAI, CONSTITUTIONAL LAW 1271-88 (4th ed., 2013).
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3. THE PRACTICE OF SURROGACY IS NOT VIOLATIVE OF THE RIGHT


AGAINST EXPLOITATION GUARANTEED UNDER ARTICLE 23 OF THE
CONSTITUTION OF INCA.

Surrogacy is an arrangement through which hapless childless couples get an opportunity to enjoy
the joy of parenthood. On the other hand a surrogate is presented with an opportunity through
which she can support her family, send her kids to school, buy a house and improve her standard
of living. It is a mutually beneficial situation. Surrogates are adult women who are capable of
making their own choices. They have a right to self-determination with respect to their bodies.
The surrogates consent to the surrogacy arrangement out of their own free will. Furthermore,
these women are those hailing from the backward sections of society. These women are attracted
to this profession because of the financial incentives offered and additionally they have no other
vocational training or means of making a livelihood.

Art.23 of the Incan constitution prevents exploitation through traffic in human beings, begar and
other forms of forced labour. In the instant case commercial surrogacy is clearly not a case of
begar. It is not human trafficking as there is no recruitment, transportation, transferring,
harbouring, or receipt of persons by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability
or the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person for the purpose of exploitation.79Commercial surrogacy is also not a
form of forced labour as women enter into surrogacy agreements through their free will and are
also being paid for their services that make it similar to any other form of employment. Forced
Labour denotes the following- Firstly, the work should be performed against the workers will.
Secondly, that the requirement that the work or service be performed is unjust or oppressive or
the work or service itself involves avoidable hardship. 80 In the instant case, clearly commercial
79U.N. Convention (2000) /Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention Against Transnational Organized Crime.

803 DURGA DAS BASU, COMMENTARY ON THE INDIAN CONSTITUTION, (8th ed.,
2008).
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surrogacy does not come under the ambit of forced labour. Hence, Commercial surrogacy is not
in violation of Art 23 as it does not fall under any of the categories specified under the
constitutional provision.

Further the counsel of the petitioner shall prove the existence of a surrogacy contract in the
commercial surrogacy arrangement. Clearly when there is a contract recognized by law, the
practice cannot be exploitive of a fundamental right. Contract of surrogacy is a contract governed
by the provisions of the Indian Contract Act, 1872. Where a person voluntarily enters into
contract of service there is no application of Art.23 unless there are penal consequences attached
to it. What is intended by the provision is the element of compulsion for doing something from
physical force, legal provision or hunger81. In the instant case none of these elements are present
hence the arrangement of surrogacy cannot be said to be in violation of Art.23.

Furthermore, as specified above the agreement between the surrogate and the commissioning
parents i.e. the surrogacy agreement is a contract. As per S. 10 of the Indian Contract Act 1872,
an agreement, which is entered into by competent parties out of free consent for a lawful object
and consideration is a contract82. In the case of surrogacy arrangements all the prerequisites of
the section are satisfied and is hence a contract. Also surrogacy agreements are very much in line
with public policy. S. 23 of the Indian Contract Act lays down the principle that if the object and
consideration of the agreement is against public policy, it renders the agreement void.

Public Policy can be defined as the policy of the law; the policy in relation to the administration
of the law and practically synonymous with public good or public welfare. 83 The term public
policy has an entirely different and more extensive meaning from the policy of the law. It is the
principle of judicial legislation or interpretation founded on the current needs of the community.

81Peoples Union of Democratic Rights v. Union of India, A.I.R. 1982 S.C. 3164.
82The Indian Contract Act, act no. 9 of 1872, 10, INDIA CODE (1872).
83P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 5526 (4th ed., 2010).
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It does not remain static in any given community and varies from generation to generation. 84 In
the light of the above definition, it is clear that the arrangement of surrogacy is not against public
policy. Science and medical technology has developed leaps and bounds, enabling childless
couples to bring home their bundle of joy. Additionally, society has also been progressing with
respect to their views on surrogacy. It has become more accepting of the views and supports the
idea of a mutually benefitting situation such as surrogacy where both parties get their desires
fulfilled.

Additionally, the courts in this country have taken a pro contract stance with respect to surrogacy
through their judgments.85 This further shows us that the courts are being supportive of
commercial surrogacy.

It is submitted that the reasoning that surrogacy agreement is not in violation of Art. 23 merely
because of the reason that the poor are attracted to it, is invalid on these grounds, as there are
multiple cases where the poor are drawn to a particular job/profession because of the nature of
service. It does not make all those contracts invalid. For example when people agree to be part of
pharmaceutical trials, most of the time they sign up because of the fact that they are being paid to
be part of a research trial where a new drug is on trial. Arguendo, even in a case where the
surrogates at the ART clinics were being influenced into their profession, it would not be a
violation of Art.23 as they were being paid.86

The counsel of the petitioner would like to reiterate that every woman has a right of selfdetermination with respect to her body. She has a choice to use her body in whatever way she
deems appropriate. No one but a lady should choose what is permissible with relation to her body
other than her. The arrangement of surrogacy is not a mechanism for exploitation but a golden
84Indian Financial Association of Seventh Day Adventures v. M.A. Unneerikutty, (2006) 6
S.C.C. 351.
85Jan Balaz v. Anand Municipality and Ors., 2010 A.I.R. (Guj.) 21; Baby Manji Yamada v.
Union of India, A.I.R. 2009 S.C. 84.
86S. Vasudevan and Ors. v. S.D. Mital And Ors., A.I.R. 1962 (Bom.) 53.
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opportunity for women to earn a livelihood, to pull their families out of the clutches of poverty.
In a country such as Inca where a majority of the population is battling the colossal challenge of
poverty, surrogacy provides a viable employment opportunity.

It is humbly submitted to this court that the respondents move of banning commercial surrogacy
will merely lead to mushrooming of illegal Assistive Reproductive Clinics which provide
services for foreigners and those who are prohibited from availing surrogate services under the
impugned Act. This Act will lead to the problem of the emergence of middlemen who in turn will
exploit thousands of women to provide for the demand of Incan surrogate women. The
Government cannot turn a blind eye to the enormous demand that the Incan Surrogates have in
the western markets. The demand will not decline magically, the demand shall subsist and the
middlemen shall make the most of this demand. They shall exploit their surrogates in the process
of providing these services, as these services will no longer be under the regulation of the
government as they are banned.

The Respondent in the process of banning commercial surrogacy on the false pretext of violation
of Art.23 has caused a situation, which will definitely violate Art.23 of the constitution. The Act
will cause unscrupulous exploitation of women as they have no protection from the law and will
be forced to continue work in the industry to protect their livelihood.

The Apex medical regulatory body has issued guidelines with respect to surrogacy as well as the
measures, which have to be followed by the Assisted Reproductive Technology (ART) clinics. 87
This clearly demonstrates that commercial surrogacy was being regulated and supervised by the
Respondent 1. The counsel for the petitioner humbly submits that the respondent should
introspect into regulation of the commercial surrogacy industry instead of banning it. Prohibition
is a fundamentally flawed concept with high collateral costs. In the instant case the respondent
should revoke the ban and enforce regulatory mechanisms with respect to commercial surrogacy
stringently.
87ICMR guidelines for accreditation, supervision and regulation of ART clinics,
http://icmr.nic.in/art/art_clinics.html (last checked on Feb. 28, 2016)
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PRAYERWherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited this Honourable Supreme Court may be pleased to adjudge and declare that:
1. The petition is maintainable under Article 32 of the Constitution of Union of Inca.
2. The Impugned Act is in violation of Right to Equality under Article 14 of the
Constitution.
3. The Impugned Act is in violation of Right to Freedom under Article 19 of the
Constitution
4. The Impugned Act is in violation of Right to Life and Personal Liberty under Article 21
of the Constitution
5. The Impugned Act is in violation of Right to Freedom of Conscience and Free
Profession , Practice and Propagation of Religion under Article 25 of the Constitution
6. The Commercial Surrogacy for Foreigners(Miscellaneous)Act is unconstitutional and
should be struck down
7. The practice of surrogacy is not in violation of the Right against Exploitation guaranteed
under Article 23 of the Constitution of Inca.
And pass any other order in favour of the petitioner that it may deem fit in the ends of
justice, equity, and good conscience. All of which is respectfully submitted.

Place: Union of Inca


S/d_________________
Date:
(Counsel for Petitioners)

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