Team Code:- 31

JSS INTRA COLLEGIATE MOOT COURT COMPETITON, 2022-2023

BEFORE THE HON’BLE

SUPREME COURT OF WANO

PUBLIC INTEREST LITIGATION

ORIGINAL WRIT JURISDICTION

W. P. (CIVIL) NO.___ OF, 2022,

UNDER ARTICLE. 32 OF THE CONSTITUTION OF UNION OF WANO

JN THE MATTER OF
AKATSUKI…………………….PETITIONER
v.
UNION OF WANO………….…….RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETIONER

Counsel for Petitioner Petitioner

Sd/- Sd/-
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Table of contents

SL. NO PARTICULARS PAGE NO

1. TABLE OF CONTENTS ii
2. LIST OF ABBREVIATIONS iii
3. INDEX OF AUTHORITIES iv
A. BOOKS REFFERED
B. DICTIONARY
C. LEGISLATIONS
D. ARTICLES
E. LEGAL DATABASES
F. TABLE OF CASES
4. STATEMENT OF JURISDICTION vi
5. STATEMENT OF FACTS vii
6. ISSUES FOR CONSIDERATION viii
7. SUMMARY OF ARGUMENTS ix
8. ARGUMENTS ADVANCED xi
I. Whether the PIL is maintainable?
II. Whether Sec 4(iii)(b) of the Act is violative of the
fundamental rights of people intending to be surrogate
mother?
III. Whether Sec. 4(iii)(c) of the Act is violative of the
fundamental rights of intending couples?
IV. Whether the surrogate mother should be allowed to
provide her own gametes?
9. PRAYER xxi

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List of Abbreviations
AIR All India Reporter
App Application
Art. Article
Cal Calcutta
Edn. Edition
Govt. Government
Hon’ble Honorable
i.e., That is
ICSI Intra Cytoplasmic Sperm
Injection
IVF In-vitro Fertilization
J. Justice
Ltd. Limited
No. Number
Ors. and Anr. Others
Pg. Page
PIL Public Interest Litigation
Ref Reference
S./Ss Section/s
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Supl. Supplement
Supp. Supplement
U.O. I Union of India
v. Versus
Vol. Volume

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INDEX OF AUTHORITIES

A. BOOKS REFFERED:

1. G. S. Pande, The Constitutional Law, (6th Edn, Gulshan Rai, Allahabad Law Agency,
Faridabad (Haryana),1996 Reprint 1998)

2. M.P. Jain, Indian Constitutional Law, (7th Edn, Lexis-Nexus Butterworth Wadhwa
Publications, Nagpur, 2016).

3. Namata Das,Public Interest Litigation

4. P. M. Bakshi, Public Interest Litigation, (1st Edn, Ashoka law House publications, New
Delhi – 110017, 1999)

5. V.N. Shukla’s “Constitution of India”, (13th Edn. Mahendra Pal Singh, EBC
Publications, Lucknow. 2017 Reprint - 2019).

B. DICTIONARY:

1. Black Henry Campbell, Black’s Law Dictionary (6th Edn. 1990).

C. LEGISLATIONS:

1. Surrogacy (Regulation) Act, 2021

2. The Constitution of India Act, 1950

D. ARTICLES AND DISCUSSIONS REFERRED:

1. The Polish Propaganda: A Handmaids Tale by Swanthika Kumar Rajwanshi and Rohan
Gajendra Pratap Singh

2. India’s attempt to regulate surrogacy – A Case of excessive state intervention and

blinkered law making by Sakshee Kumar

3. India as a participatory democracy and the central vista judgment: A Discussion by

Abhiraj Das and Sarvotham Naik

E. LEGAL DATABASES:

1. SCC Online

2. Manupatra

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F. TABLE OF CASES:

SL NO. NAME OF THE CASES CITATION

Cooverjee Bharucha v. Excise Commissioner of 1954 AIR 220, 1954 SCR 1873
1.
India

Gopi Chand v. Delhi Administration 1959 AIR 609, 1959 SCR Supl.
2.
(2) 87

3. Income Tax officer v. Lawrence Singh ingty 1968 AIR 658, 1968 SCR (2) 165
AIR 1993 SC 892
Janata Dal v. H. L Choudhary
4.

5. K. S. Puttaswamy v. Union of India 2017 (10) SCC 1

6. Kalgsari Haldar v. State of West Bengal AIR 1960 SC 457

L.I.C of India v. Consumer Education and 1995 AIR 1811, 1995 SCC (5) 482
7.
Research Centre

National Legal Service Authority V. Union Of AIR 2014 SC 1863

8.
India

9. Nar Singh Pal v. Union of India AIR 2000 SC 1401

AIR 1982 SC 149
S. P. Gupta v. Union of India and Ors
10.

11. State of Bombay v. F. N. Balsara AIR 1951 SC 689

12. State of West Bengal v. Anwar Ali Sarkar AIR 1952 Cal 150

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STATEMENT OF JURISDICTION

The Writ Petition has been filed invoking the writ jurisdiction of the Supreme Court of India
under Article 32 of the Constitution of India1.

The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by part III is guaranteed.

Wherein, Article 32 reads as under:

32. “Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed
2. 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
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution”.

1
Constitution of Wano is in pari materia with Constitution of India, herein referred as ‘Constitution’

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STATEMENT OF FACTS

1. Eric and Maeve are a married couple (NRW) residing in Namek. Even upon multiple consultations
and attempts they failed to conceive a child, even after 8 years. Frustrated couple took a vacation
to Wano (Eric’s parent’s house), where they came across Ria 23yrs old, UG student, who was
residing at Eric’s parent house, because she lost her parents in an accident and Eric’s parents
decided to foster her. Ria saw the struggling couple and volunteered to be a surrogate mother for
the couple’s child. The couple were elated upon hearing the words and agreed instantly, whereas
Maeve’s family insisted on drafting a formal surrogacy contract.
2. They conducted multiple IVF procedures using Eric and Maeve gametes and they failed, the
results stated that the procedures were failing due to Maeve’s infertility. Ria’s friend suggested
going with Ria’s gametes instead of Maeve’s, but they failed as well. These procedures took a
significant amount of time, so the couple requested Ria to continue with treatments and they
headed back to Namek to wind up their business there and come back to nurture their child. After
their leave Ria spoke to doctors about using Intracytoplasmic Sperm Injection as it was a more
sensible and logical approach to conceive a child, which actually worked and she became
pregnant. The following news was conveyed to the couple and they were very happy on hearing it.
3. Ria moved back to Genovia to complete her studies Eric supported this decision but he specifically
requested Ria to stay in his penthouse instead of dormitory to provide a suitable environment to
the child. It was stressful for her so she decided to attend mandatory classes and avoid unnecessary
check-ups. During the final trimester check-up she discovered that she had conceived twins. She
planned to surprise the couple by keeping it a secret.
4. Meanwhile, the couple returned to Wano a couple of weeks before the date of delivery, winding up
all their businesses in Namek to spend time with Ria and their child. On the date of delivery the
first child was delivered without complications, whereas the second child suffered brain damage
from hypoxia. The couple were shocked and heartbroken about the condition of twins and felt
betrayed.
5. Ria received a legal notice from the couple demanding custody of the “healthy baby” in
accordance with the terms of the surrogacy contract. Which made Ria reassess the fact of having
‘the couple’ as the parents of newborn twins. She was discharged from the hospital and moved to
Genovia with her newborn twins seeking help from her friends and the students of Alchemy
University; they welcomed her, raised money and assisted her in all possible ways to harbour her
and babies.
6. However, Eric and Maeve filed a case in the Metropolitan Magistrate of Genovia seeking the
custody of the “healthy child”. Ria and her friends, enraged by the claims made by the couple,
filed a suit for maintenance of the twins. The facts of the case spread and became national news,
causing massive public outrage.
7. Metropolitan Magistrate of Genovia upon hearing the cases, found that there exists no valid
contract of surrogacy as per the requirements prescribed under Surrogacy (Regulation) Act, 2021.
Hence, there were no rights arising out of the contract and dismissed both the suits filed by the
parties.
8. Ria, the surrogate mother was immensely affected with the verdict given as she was in a difficult
situation where she is the mother of two children, left with no remedy under any law inforce to
seek maintenance for her children and the act also blatantly transgressed the rights of surrogate
mother.

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ISSUES FOR CONSIDERATION

ISSUE – I
WHETHER THE PIL IS MAINTAINABLE?

ISSUE – II
WHETHER SEC. 4(iii)(b) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS
OF THE SURROGATE MOTHERS?

ISSUE – III
WHETHER SEC. 4(iii)(c) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS
OF INTENDING COUPLES?

ISSUE – IV
WHETHER THE SURROGATE MOTHER SHOULD BE ALLOWED TO PROVIDE
HER OWN GAMETES?

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SUMMARY OF ARGUMENTS
ISSUE – I
WHETHER THE PIL IS MAINTAINABLE?
It is most humbly submitted before the Hon’ble Court that the PIL in the present case is
maintainable, the petitioner being a Public-spirited organisation has approached this Hon’ble
Supreme court under Article. 32 of the Constitution for the enforcement of the Fundamental
Rights which is infringed by certain regulations of the Surrogacy (Regulation) Act, 2021. The
Act imposed restrictions on individuals who want to become surrogate mothers, which clearly
violates the Art. 14 of the Indian Constitution, as an unmarried female is not given equal rights as
a married female. Further the ban of commercial surrogacy violates the Art.19(1)(d) of the Indian
Constitution, which states the right to carry out any desired occupation. Further this act violates
the Right to live life with dignity implies the right to earn a livelihood and any woman who is not
able to earn her livelihood because of banning of commercial surrogacy is clear violation of Art.
21 of the Indian Constitution.

ISSUE – II
WHETHER SEC. 4(iii)(b) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS
OF THE SURROGATE MOTHERS?
It is most humbly submitted to the Hon’ble court that sec. 4(iii)(b) is a violation of the
surrogate mother as it infringes art. 14 & art. 19(1)(g) by grossly restricting their right to
conceive a child and also delineates unreasonable restrictions for an intending surrogate mother
like age, marital status, No. of times she can undergo surrogacy making the process per se
cumbersome. The act also infringes one of the cornerstones of the constitution, art. 21 by fixing
unreasonable restrictions to the surrogate mother by preventing them from using their own
gametes and also capping the No. of time she can undergo surrogacy. The aspect of compensated
surrogacy is ignored.
ISSUE – III
WHETHER SEC. 4(iii)(c) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS
OF INTENDING COUPLES?
It is most humbly submitted to the Hon’ble court that sec.4(iii)(c) is a violation of the
intending couples as it infringes art. 14 & art.21 by grossly restricting their rights to avail
surrogacy by bringing in clauses such as age, period of marriage, and infertility of the couples.
The act is also silent on the rights of live-in relationship and gay couple’s. The cumbersome
restriction also prevents them from availing the service of surrogacy, there is also infringement of

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right to privacy as it obligates the couples to disclose their medical infertility. The bill has a
major lacune, The definition of infertility as explained in the Bill seems to be incomplete as it
does not cover those couples who conceive but unfortunately owing to weak and deficient ovary
syndrome are not able to sustain the pregnancy.
ISSUE – IV
WHETHER THE SURROGATE MOTHER SHOULD BE ALLOWED TO PROVIDE
HER OWN GAMETES?
It is most humbly submitted before the Hon’ble Court that the surrogate mother should
be allowed to donate her gametes in the instant case and similar cases like this as the couple’s
female is infertile, and there are no family donors of eggs so which the couple can opt for
surrogacy. When neither family member's gametes are available then instead of a donor the
surrogate mother gametes should be taken as it would be healthy and avoid medical
complications like mutation, syndromes and other genetic disorders. But the gametes received
from surrogate mother should be considered as gametes received from a donor; there should be
two specific contracts made.

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ARGUMENTS ADVANCED

I.WHETHER THE PIL IS MAINTAINABLE?.

It is humbly submitted before the Hon’ble Supreme Court that the petitioner in the instant
case has the locus standi to approach the Hon’ble Court. The locus standi means the power to
stand before the court. The basic principle of the Public Interest Litigation is that the petitioner
should seek the benefit of the public at large and should not have his own motive to be served by
the outcome of such PIL and only when constitutional provisions have been compromised. A PIL
can be filed by any member or NGO or any institutions working for the society at large.

LOCUS STANDI
The petitioner seeks the Article 32 of the Constitution as the locus standi which is a
Fundamental Right in itself, every aggrieved citizen who is deprived of their Fundamental Right
can approach this Hon’ble Court for the enforcement of the Fundamental Rights against the State
authorities.
32. “Remedies for enforcement of rights conferred by this Part
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
2. 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
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution”.
A citizen has the right to approach the Supreme Court under Art.32 for the enforcement
of their Fundamental Rights mentioned under Part III of the Constitution. Art.32 is remarked as
the Heart and Soul of the Constitution.
The Rights under Part III would be meaningless if they cannot be enforced.

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In S P Gupta V. Union of India (UOI) and Ors.,2 the court stated that :
“.........where a legal wrong or a legal injury is caused to a person or to a determinate class of
persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate class of
persons is by reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of the public can
maintain an application for an appropriate direction, order or writ in the High Court under Article
226 and in case of breach of any Fundamental Right of such person or determinate class of
persons, in this Court under Article 32.”
In Janata Dal v. H. L. Choudhary.,3 the court stated that:
“…..... In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a
broad rule is evolved which gives right of locus standi to any member of the public acting bona
fide and having sufficient interest in instituting an action for redressal of public wrong or public
injury, but who is not mere busy body or a meddlesome interloper, since the dominant object of
PIL is to ensure observance to the provisions of the Constitution or the law which can be best
achieved to advance the cause of community or disadvantaged groups and individual or public
interest by permitting any person, having no personal gain or private motivation or any other
oblique consideration, but acting bona fide and having sufficient interest in maintaining an action
for judicial redress for public injury to put the judicial machinery in motion like action
popularises of Roman Law whereby any citizen could bring such an action in respect of public
delict……..”
In the instant case, the petitioner is a public spirited organisation and is filing the present PIL on
the behalf of the victim who has no monetary strength to approach before the Hon’ble court ,the
PIL being bona fide for the welfare and benefit of society as a whole and doesn’t have any
personal interest in the subject matter herein.
Hence, the petitioner has the locus standi to approach the Hon’ble Court on the grounds of
violation of the Fundamental Rights such as Right to equality, Right to Freedom, and Right to
live life with dignity, guaranteed under Article 14, 19(1)(g),and 21 of the Constitution
respectively, while imposing restrictions on surrogate mothers.

2
AIR 1982 SC 149
3
AIR 1993 SC 892

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II. WHETHER SEC. 4(iii)(b) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL
RIGHTS OF THE SURROGATE MOTHERS?
It is humbly submitted before the Hon’ble Supreme Court that the Sec. 4(iii)(b) of the
Surrogacy (Regulation) Act, 2021 is violative of fundamental rights of the surrogate mother.

The Sec. 2(zd) and (zg) of Surrogacy (Regulation) Act, 2021

“(zd) “surrogacy” means a practice whereby one woman bears and gives birth
to a child for an intending couple with the intention of handing over such child to the
intending couple after the birth;
(zg) “surrogate mother” means a woman who agrees to bear a child (who is
genetically related to the intending couple or intending woman) through surrogacy
from the implantation of embryo in her womb and fulfils the conditions as provided in
sub-clause (b) of clause (iii) of section 4;”

Violation of Article 14 of The Constitution.

Art. 14 of Constitution:
“The state shall not deny to any person equality before the law or the equal protection of
the law within the territory of India”
The equality clause contained in Art. 14 require that all persons subjected to any
legislation should be treated alike under like circumstances and conditions. “Equals must be
treated equally while unequal’s must be treated differently”.4
Equal protection of law –means that all the persons similarly circumstanced shall be treated alike
both in the privileges conferred and liabilities imposed by the laws. Equal protection of law
should be applied to all in the same situation, and there should be no discrimination between one
person and another. Equality before the law or equal protection of the law does not mean same
treatment as everyone.
As in “State of West Bengal v. Anwar Ali Sarkar”5, Patanjli Shastri C.J held that,
“……..‘Equal protection of laws’ is corollary of the ‘equality before the law’. It is difficult to
imagine a situation when ‘equality before the law’ can be maintained without equal protection of
laws. In practice therefore both the expression come to one and the same thing”

4
V.N. Shukla’s Constitution of India, 50 (M.P. Singh, 13th ed., 2017)
5
AIR 1952 Cal 150

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Test of Reasonable classification

Whenever there exists a classification there must be a law which should govern this
classification and the law must be reasonable. This Hon’ble Court has laid down tests to show
that a classification made is valid or not. It is most humbly submitted that the classification in
this particular case is unreasonable and the classification does not satisfy the tests laid down by
the court. The test which are considered for a reasonable classification are,
1) the classification must be founded on intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group and
2) the differentia must have a rational relation to the object sought to be achieved by the
statute in question.
While the classification may be founded on different bases, what is necessary is that there
must be a nexus between the basis of classification and the object of the Act under consideration.
If illogical, unfair and unjust then classification is unreasonable.

(a) Intelligible differentia

It is the first requirement for the validity of a classification is that it must be founded on some
intelligible differentia, which distinguishes persons or things that are grouped together form
others left out of the group.6
In the case of L.I.C of India v. Consumer Education and Research Center,7
“The doctrine of classification is only a subsidiary rule evolved to give a practical content
to doctrine of equality, but over emphasis on classification would result in substitution of
doctrine of classification for doctrine of equality”
In the instantaneous case the restrictions present are erroneous without any rational reasoning
that would back the said clauses in the law and the above case aptly describes the situation that
an intending surrogate mother is pushed into a plethora of rules.

6
State of Bombay v. F.N Balsara, AIR 1951 SC 689
7
1995 AIR 1811, 1995 SCC (5) 482

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(b) The differentia must have some rational relation relating to the object sought to be
achieved
The court should ascertain the policies and underlining the objectives the statute intents to
achieve by the said act and if the act fails to pass either of the two test and the court is not
satisfied with the statute it must be struck down as unconstitutional for violation of article 14.8
In the case of Income Tax officer v. Lawrence Singh ingty9, the court observed
“ …We fail to see in what manner the social status and economic resources of a
government servant can be different from that of a another holding similar possession in a
corporation or that of a successful medical practitioner, lawyer, architect. Etc…”
In the instant case, the objective of the government is nebulous, as the restriction on the
intending altruistic surrogate mother are clubbed with the commercial surrogate mothers where
the former is forced to undergo unreasonable test just so the latter is prevented from existence

Discriminatory Nature of the Act:

1. The act imposes restrictions and certain classification on women which leaves only
married women of age 25 - 35 years eligible to help the couples who don't have children
due to infertility of any/both partners or multiple failures to conceive a child because of
physical and mental conditions. Thus imposition of such qualifications indicates
discrimination of women based on their age and marriage
2. Women like Ria can't help the struggling couples like Eric and Maeve out of concern,
because of such restrictions imposed by the Surrogacy Act, 2021. Even if they did there is
no remedy available in such circumstances.

Violation of Article 19(1)(g) of The Constitution.

Art. 19(1)(g) of Constitution:
“to practice any profession, or to carry on any occupation, trade or business”
Under the Surrogacy (Regulation) Act 2021, sec. 4(iii)(b)
(IV) no woman shall act as a surrogate mother more than once in her lifetime:
It is humbly submitted before the Hon’rable Supreme court that the petitioner contends
that sec. 4(iii)(b) point (IV), violates Article 19(1)(g) by preventing commercial surrogacy, by
restricting the number of times a surrogate mother can undergo surrogacy.

8
Kalgsari. Haldar v. State of West Bengal, AIR 1960 SC 457
9
1968 AIR 658, 1968 SCR (2) 165

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In Cooverjee Bharucha v. Excise Commissioner of India10, delivering the judgment of the court
Mahaja J. observed;
“......In order to determine reasonableness of the restriction regard must be had to the nature of
business and the conditions prevailing in that trade. It is obvious that these factors must differ
from trade to trade and no hard and fast rules covering all the treats can be laid down. It can
also not be denied that the state has the power to prohibit trades which are illegal or immoral or
injurious to the health and welfare of the public. Laws prohibiting trade in noxious or dangerous
goods or trafficking in women cannot be held to be illegal as enacting prohibition and not mere
regulation. The nature of the business is, therefore an important factor in deciding
Reasonableness of restriction.”
It is humbly submitted that before the Hon’ble SC that the act grossly violates art. 19(1)(g) by
restricting from using commercial surrogacy as a means of livelihood, that also is oblivious of
the fact that thousands of medical tourist visit India with the intent of availing surrogacy and
such arbitrary restriction just renders surrogate mothers with no remedy.

10
1954 AIR 220, 1954 SCR 873
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III. WHETHER SEC. 4(iii)(c) OF THE ACT IS VIOLATIVE OF FUNDAMENTAL
RIGHTS OF INTENDING COUPLES?
It is humbly submitted before the Hon’ble Supreme Court that the Sec. 4(iii)(b) of the
Surrogacy (Regulation) Act, 2021 is violative of fundamental rights of the intending couples the
act infringes upon art. 14 and art. 21.

(A) Test of reasonable classification

Whenever there exists a classification there must be a law that should govern this classification
and the law must be reasonable. This Hon’ble Court has laid down test in ‘Gopi chand v. Delhi
administration’11 to show whether a classification made is valid or not. It is most humbly
submitted that the classification in this particular case is unreasonable and the classification does
not satisfy the tests laid down by the court. The test which are considered for a reasonable
classification are,
1) the classification must be founded on intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group and
2) the differentia must have a rational relation to the object sought to be achieved by
the statute in question.
In the instant case, the restriction on couples is unreasonable in regards to clause of age,
infertility, are clearly transgressing the test laid down
In Gopi chand v. Delhi administration11 where there is no ratio of entertaining clauses that
restrict infertile couples to wait for five years to avail the service of surrogacy. The prima facia
restriction and state excessive intervention in the life of individuals infringes art. 21, universally
guarantees the right to life and personal liberty and
In K.S. Puttaswamy v. Union of India12, the Supreme Court has upheld an individual's right to
privacy as intrinsic to Article 21, recognising further that privacy is relatable to the constitutional
right to make reproductive choices.

11
1959 AIR 609, 1959 SCR Supl. (2) 87
12
2017, (10) SCC 1
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Violation of Article 21 of Constitution

Art. 21 of Constitution
“ No person shall be deprived of his life or personal liberty except according to the procedure
established by law”

In K.S Puttaswamy v. Union of India12, 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.”
In National Legal Services Authority v. Union of India13, the Court had recognised members of
the marginalized transgender community as the “third gender” and observed that discrimination
on account of gender identity and sexual orientation undermines equality before the law and
equal protection of the laws, thereby violating Article 14 & Art.21 of the Constitution.
In Nar Singh Pal v. Union of India14, the Court observed:
“….Fundamental rights under the Constitution cannot be bartered away. They cannot be
compromised nor there can be any estoppels against the exercise of fundamental rights available
under the Constitution.”
In the instant case it is most humbly submitted before the court that the act is silent over
the rights with regards to surrogacy for the couples of live-in relationship and LGBTQ couples
where both of them are recognised under the said courts judgment but are not duly recognised to
avail the act of surrogacy.

12
2017, (10) SCC 1
13
AIR 2014 SC 1863
14
AIR 2000 SC 1401

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IV.WHETHER THE SURROGATE MOTHER SHOULD BE ALLOWED TO PROVIDE
HER OWN GAMETES?
It is most humbly submitted before the Hon’ble Court that in the instant case the
surrogate mother should be allowed to donate her gametes. Surrogacy means a practice whereby
one woman bears and gives birth to a child for an intending couple with the intention of handing
over such child to the intending couple after the birth according to the Surrogacy (Regulation)
Act, 2021, gestational surrogacy means a practice whereby a surrogate mother carries a child for
the intending couple through implantation of embryo in her womb and the child is not genetically
related to the surrogate mother and surrogate mother means a woman who agrees to bear a child
through surrogacy from the implantation of embryo in her womb and fulfils the conditions as
provided in sub-clause (b) of clause (iii) of section 4;
In cases where the intended mother’s gametes are infertile and there are no family
members with a healthy oocyte, instead of a donor’s oocyte the surrogate mother should be
allowed to donate her own oocyte, which would be a much more reasonable, logical and healthy
approach. As it is mentioned in various medical reports that, while opting for gestational
surrogacy, certain important tests are conducted regarding the physical and mental conditions of
surrogate mother to test the compatibility of the embryo.
Prospective surrogates will be required to undergo a complete medical check-up to check
their blood type and hormone levels. The surrogate will need to complete a pap smear, uterine
check, STD testing, drug screen and more. These exams ensure the prospective surrogate is
physically healthy and ready to carry a pregnancy to term. The surrogate should also undergo
thorough psychological assessment, in order to be considered suitable for gestational surrogacy
The surrogate candidate will complete a standardised personality test, MMPI-2, and will meet
with an agency psychologist. The psychological assessment is designed to protect the best
interests of the inquiring surrogate by gauging how well she will handle the surrogacy journey
and also the psychological assessment evaluates the surrogate's ability to emotionally sustain
gestation and delivery.
The above-mentioned tests are followed to test the compatibility of the embryo with that
of the surrogate mother, so that in future no medical complications arise. If instead of the donor's
oocyte the surrogate mother provides her own oocyte then it would be more compatible than any
others. And it would also avoid medical complications like genetic mutation if there are three
DNA’s exposed in the process of gestational surrogacy which may further lead to syndromes like
Turner syndrome which is commonly found in gestational surrogacy and other genetic disorders.
It would also avoid treatments for syncing the menstrual cycle of the donor’s and the surrogate

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mother’s which are considered as hazardous to both mother and child as the chemicals used for
such treatments can have some side-effects in the body of the surrogate mother.
In the instant case the intended mother’s oocyte were infertile, which was confirmed
through several failures of fertilization of embryo and there were no family donor avail at that
time hence, instead of going to a donor the intended couple went with Ria’s oocyte, which finally
resulted in conceiving of the child. No complications arose regarding genetic disorder but due to
absence of embryonic fluid the second child suffered a brain damage. The intended couple
wanted to claim the parenthood of their first child only, which was denied by Ria. Hence, they
went to the Metropolitan Magistrate of Genovia seeking custody of the healthy child. The case
was dismissed which would have led to abandonment of the child. It wasn’t as they were
genetically related to the surrogate mother she planned to raise them
Hence, in such cases or similar cases if there is abandonment of the child the surrogate
mother can take custody of the child as she would be genetically related.

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PRAYER

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is
most humbly prayed and implored before the Hon’ble Supreme Court of India, that it may
be graciously pleased to adjudge and declare that:
1. The Public Interest Litigation is maintainable as there is violation of
Fundamental Rights.
2. The Sec. 4(iii)(b) of Surrogacy (Regulation) Act, 2021 does infringe
Right to Equality and Right to Freedom of surrogate mother
guaranteed under Article 14, and 19(1)(g) of the Constitution.
3. The Sec. 4(iii)(c) of Surrogacy (Regulation) Act, 2021 does infringe
Right to Equality, and Right to Life of intending couple guaranteed
under Article 14, and 21 of the Constitution.
4. The Surrogate mother should be allowed to donate her own gametes.

AND/OR

Pass any other order that it may deem fit in the favour of the respondent to meet the ends
of equity, justice and good conscience. For this act of Kindness, the petitioners shall duty
bound forever pray.

COUNSELS FOR PETITONERS

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