KLE COLLEGE OF LAW, NAVI MUMBAI

6TH NATIONAL MOOT COURT COMPETITION, 2025

BEFORE THE HON’BLE SUPREME COURT

OF VARDAAN

ORIGNAL WRIT JURIDICTION

W.P. (CIVIL) NO. X OF 2025

UNDER ARTICLE 32 OF THE CONSTITUTION OF VARDAAN

IN THE MATTER OF

Dr. Mukul Zaveri & Ors. …PETITIONERS

V/s
Union of
Vardaan …RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENT

 6th NATIONAL MOOT COURT COMPETITION
SOCIETY’S K.L.E. COLLEGE OF LAW, NAVI MUMBAI

TABLE OF CONTENTS

LIST OF ABBREVIATIONS..................................................................................................2

INDEX OF AUTHORITIES...................................................................................................3

STATEMENT OF JURISDICTION......................................................................................4

STATEMENT OF FACTS......................................................................................................5

1. Vardaan and Its Social, Economic and Cultural Background........................................5

2. Introduction to Assisted Reproductive Technologies & Surrogacy...............................5

3. Problems leading to exploitation and ethical concerns..................................................5

4. Regulatory Efforts and Its Impact..................................................................................6

5. Aftermath of Introduction of Surrogacy (Regulation) Act, 2021 .................................. 6

6. Effects upon the beneficiaries and the following petition..............................................6

ISSUES RAISED......................................................................................................................8

SUMMARY OF ARGUMENTS.............................................................................................9

ARGUMENTS ADVANCED................................................................................................11

I. Whether the prohibition of commercial surrogacy as stated under Section 4(ii)(b) and
Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?........................11

II. Whether restricting access to surrogacy and ART services to only married heterosexual
couples violate the fundamental right to equality by excluding single intending parents,
LGBTQ+ individuals, and unmarried couples without a reasonable classification? ........... 19

III. Whether the right of couple to avail surrogacy being restricted to married couples
between the age of 23 to 50 years in the case of female and between 26 to 55 years in the case
of male as it is being provided under Section 4(iii)(c)(I) read with Section 2(I)(h) of the
Surrogacy (Regulation) Act, is constitutional? .................................................................... 23

IV. Whether the exclusion of foreign nationals from accessing surrogacy and ART services
under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproduction Technology Act,
2021, violate the fundamental rights guaranteed under the constitution of Vardaan?.........26

PRAYER.................................................................................................................................31

MEMORANDUM FOR RESPONDENT

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LIST OF ABBREVIATIONS

AIR All India Report

Ors Others
Anr Another
Hon’ble Honorable
SCC Supreme Court Cases
UOI Union of India
COI Constitution of India
V/s Versus
Vol Volume
No. Number
i.e That is
Pg. No Page Number
Art. Article
United Nations UN
Universal Declaration Of Universal Rights UDHR
International Covenant on Civil and ICCPR
Political Rights

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INDEX OF AUTHORITIES

A. STATUTE REFERRED:

 Constitution of India, 1950

 Surrogacy Regulation Act, 2021
 Assisted Reproduction Technology Act, 2021

B. BOOKS REFERRED:

 Constitution of India – Commentary by D. D. Basu

 Constitution of India, 1950 - Commentary by M. P. Jain
 Surrogacy Regulation Act, 2021 – Dr. Rekha Pahuja

C. DYNAMIC LINKS REFERED:

 Legal Data Base:

a) SCC Online
b) Live Law
c) Manupatra

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STATEMENT OF JURISDICTION

The Petitioners have approached this Hon'ble Court through a Petition filed under Article 32
by way of writ petition of the Constitution of vardaan for the violation of the Fundamental
rights enumerated under Article 14, 21 and 25 of the Constitution of Vardaan, 1950.
Therefore, it is humbly submitted that the Writ Petition filed is not maintainable because there
is no violation of fundamental rights in this particular case.
The Present memorandum sets forth the facts, contentions, arguments and prayers in the present
case.

MEMORANDUM FOR RESPONDENT

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SOCIETY’S K.L.E. COLLEGE OF LAW, NAVI MUMBAI

STATEMENT OF FACTS

1. Vardaan and Its Social, Economic and Cultural Background

Vardaan, a developing and democratic nation stands as the most populous country in the world.
Despite substantial growth in its technology and industrialization most of its population is
underprivileged. This prevailing poverty in the country is marked by the limited access to
employment and other benefits including basic amenities drawing a line between the poor and
the rich. Being an oldest civilization the families in vardaan adhere to the same patriarchal
notion following the typical gender roles.

2. Introduction to Assisted Reproductive Technologies & Surrogacy

With the proliferation of ART practices as an infertility treatment in the late 1970s it gave rise
to several ethical, social, and religious norms along with the growing health concerns. This
debate led to regulation of such practices in many European countries including a blanket ban
for strict compliance. This led to a swift expansion in the sector of surrogacy in Vardaan. As
there were no laws in the country to govern its practice over the past 3 decades Vardaan
emerged as a “Surrogacy capital of world” attracting intended parents from across the globe
due to its low medical costs and advanced healthcare infrastructure. Significantly, the
availability of surrogates at minimal costs in comparison with other countries.

3. Problems leading to exploitation and ethical concerns

With the continuous growth clinics engaged in commercial surrogacy deviated from their
primary purpose and started acting as an intermediary between the parent and surrogate
mothers. There focus shifted to be profit oriented leading to exploitation of the surrogate
mothers in terms of their health and emotional well-being. Due to lack of oversight this practice
was influenced by making the surrogate mother live under coercive conditions. Although due
to the poverty imbalance many women specifically from economically weaker background got
into this profession where they were offered minimal compensation, not taking into
consideration the emotional and physical toll the women go through.

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4. Regulatory Efforts and Its Impact

Till the year 2005 there was no regulatory guidelines governing the ART practices effect of
which the council for medical research issued national guidelines for accreditation, supervision,
and regulation of such clinics. A study indicated the growth of such practices with around
25,000 babies born out through surrogate mother out of which 50% were for international
couple, leading it worth to $400 million with around 3000 clinics operating across the country.
The lack of proper regulation, increasing exploitation, and growing legal disputes, gave rise to
the urgent need for regulation. As a result, the ministry of home affairs vide notification in
2015 banned the commercial surrogacy, subsequently after debates spanning over 6 year the
legislation came up with the comprehensive regulations in the year 2021 to regulate such
practices.

5. Aftermath of Introduction of Surrogacy (Regulation) Act, 2021

The act banned commercial surrogacy leading way to recognition of surrogacy only through
altruistic manner thus restricting any form of payment to the surrogate mother other than the
insurance and medical costs incurred. The act also regulated the sale of gametes, while
restricting such practices limited to only married couples. The legislation faced mixed reaction
from both the proponents while some arguing it to be a step ahead to prevent exploitation of
vulnerable women and protecting the integrity of surrogacy process. Some termed it to be a
violative as it excluded single parents, LGBTQ+ individuals, and unmarried couples. It was
also criticized for its blanket ban on financial compensation making it impractical.

6. Effects upon the beneficiaries and the following petition

One such petition was filed by Mr. Anirudh Sharma H/o Ms. Shruti Kolekar, who decided to
undergo surrogacy with the eggs of his deceased wife succumbed to cancer as an honour and
her last wish. To his surprise he was informed that under the present legislation he as a single
male do not have the right to undergo surrogacy. Aggrieved by such discrimination he
challenged the constitutionality of the law before the high court of Aloha.

Another petition was filled by Dr. Mukul Zaveri who runed a clinic in the state of Marhaba.
As most of his clientele were foreigners the restrictions imposed by the present legislation
made it difficult for him to run his clinic, this difficulty was exacerbated by the blanket ban on
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commercial surrogacy. Reason which he wrote multiple articles portraying his views on such
blanket ban. He was also influenced by the discrimination on the basis of infertility leading to
file a petition. The petition highlighted the case of his client Sanya a victim of sexual abuse and
a patient of Mukul. She shifted to US and got married leading to get US citizenship. Although
due to her past she preferred to undergo surrogacy rather than the traditional method of
procreation although as she was not infertile and a foreign citizen she was excluded from the
ambit of the act.

Subsequently a petition was filled by a couple Ms. Sangita Sanjhewalah (52) and Mr. Rakesh
Sundarajan (56) who lost their only child 8 year ago leaving them distraught. After being
disappointed by the waiting period to adopt the petitioner approached the fertility clinic to
attempt surrogacy but being barred due to age filled a petition before the High Court of Salve
for violation of their fundamental rights.

The supreme court considering the same nature of the petition consolidated and transferred
before itself and listed it for hearing.

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ISSUES RAISED

1. Whether the prohibition of commercial surrogacy as stated under Section 4(ii)(b) and
Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?

2. Whether restricting access to surrogacy and ART services to only married heterosexual
couples violate the fundamental right to equality by excluding single intending parents,
LGBTQ individuals, and unmarried couples without a reasonable classification?

3. Whether the right of a couple to avail surrogacy being restricted to married couples
between the age of 23 to 50 years and in case of female and between 26 to 55 years in
case of male as it is being provided as stated under Section 4(iii)(c)(I) read with Section
2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?

4. Whether the exclusion of foreign nationals from accessing surrogacy and ART services
under the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive
Technology (Regulation) Act, 2021, violate the fundamental rights guaranteed under
the Constitution of India?

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SUMMARY OF ARGUMENTS

1. Whether the prohibition of commercial surrogacy as stated under Section 4(ii)(b) and
Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?

The Counsel on behalf of Respondent humbly submits that prohibition of commercial

surrogacy as stated under Section 4(ii)(b) and Section 4(ii)(c) of the Surrogacy
(Regulation) Act, 2021 is not ultra vires to the principles of constitution as the law
passes the proportionality test and draws a nexus between the object and classification.
The state has abided by its duty to protect the interest of the general public at large and
while not imposing a complete ban over surrogacy and adopting a middle way of
altruistic surrogacy with international lines.

2. Whether restricting access to surrogacy and ART services to only married heterosexual
couples violate the fundamental right to equality by excluding single intending parents,
LGBTQ+ individuals, and unmarried couples without a reasonable classification?

The counsel on behalf of the respondent humbly submits before this Hon’ble court that
the classification made on the basis of marriage as a ground is valid and draws a
reasonable classification with the objective of the act. The exclusion of the Unmarried
couples, widowed and divorced men, single parents is made not on the basis of the
societal stigma but on reasonable grounds for the protection of rights of the child and
meeting the objective of the act.

3. Whether the right of couple to avail surrogacy being restricted to married couples
between the age of 23 to 50 years in the case of female and between 26 to 55 years in
the case of male as it is being provided under Section 4(iii)(c)(I) read with Section
2(I)(h) of the Surrogacy (Regulation) Act, is constitutional?

The counsel on behalf of the respondent humbly submits before this Hon’ble court that
the classification made on the basis of age is not violative of the fundamental rights
provided under the constitution but draws a reasonable classification with the biological

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cycle of human being keeping into consideration the right of the unborn child and states
duty to protect women and children along with international standards.

4. Whether the exclusion of foreign nationals from accessing surrogacy and ART services
under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproduction Technology
Act, 2021, violate the fundamental rights guaranteed under the constitution of Vardaan?

The counsel on behalf of the respondent humbly submits before this Hon’ble court that
the exclusion of foreign nationals from accessing surrogacy and ART services under
the Surrogacy (Regulation) Act, 2021 and the Assisted Reproduction Technology Act,
2021 is not in violation of the fundamental rights and have been imposed to restrict the
exploitation of surrogate mother, and unborn child. It has also been brought to protect
the child from citizenship issues. It has to be presumed that the legislation is in verse
with the constitutional norms unless it is proved contrary.

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ARGUMENTS ADVANCED

I. Whether the prohibition of commercial surrogacy as stated under Section

4(ii)(b) and Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is
constitutional?

The counsel on behalf of the respondent humbly submits before this hon’ble court that
the ban imposed on commercial surrogacy as specified U/s 4(ii)(b) and 4(ii)(c) of the
Surrogacy (Regulation) Act, 2021 is in consonance with the objective of the act to
protect the dignity of Indian womanhood, prevent trafficking of human beings and to
put an end to the business of selling surrogate child.

Reasonable classification between altruistic and commercial surrogacy

1. The prohibition of commercial surrogacy under the Surrogacy (Regulation) Act,
2021 is a constitutionally valid classification that adheres to the doctrine of
Reasonable Classification enshrined under Article 14 of the Constitution of
Vardaan. The distinction between altruistic and commercial surrogacy is based on
intelligible differentia and has a rational nexus with the objective of preventing the
commodification of women’s reproductive labour and protecting surrogate mothers
from exploitation. Throughout the years, surrogacy has ranged from opportunity to
exploitation, i.e., from rural women being uplifted out of the poverty-stricken slums
to a futuristic nightmare of developing India into a baby farm. This medical practice
which started as convenience grew into the “womb for rent” commercial business
and later turned out to be a luxury, due to which exploitation of surrogates began.

2. As laid down in The State of West Bengal vs Anwar All Sarkarhabib1, the SC
interpreted the scope of Art. 14, which guarantees equality before the law.

The test of reasonable classification has 2 conditions to pass:

a. Classification based on Intelligible Differentia which distinguishes persons or things

1
1952 AIR 75
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that are grouped together in a class from others left out of it.
b. The differentia adopted as a basis of classification must have Rational Nexus with
the object sought to be achieved by the statue in question.

3. The classification made by the Surrogacy (Regulation) Act, 2021, differentiates

between altruistic surrogacy, where a woman voluntarily agrees to be a surrogate
without financial compensation, and commercial surrogacy, where the surrogate
mother receives monetary compensation beyond medical expenses. The
intelligible differentia between these two categories is based on substantial
differences in purpose, motive, and impact:
i. Nature of the Agreement:
Altruistic surrogacy is motivated by compassion and personal relationships,
usually involving a close relative of the intended parents whereas commercial
surrogacy, on the other hand, is a contractual, profit-driven arrangement where a
woman’s womb is effectively rented for a fee.
ii. Potential for Exploitation:
Altruistic surrogacy reduces the risk of economic coercion because the surrogate
is not financially dependent on the act whereas in Commercial surrogacy, there is
a power imbalance where poor women may be compelled to become surrogates
due to financial distress rather than informed consent.
iii. Ethical & Moral Considerations:
Altruistic surrogacy aligns with humanitarian and family-based principles on the
other hand commercial surrogacy raises significant ethical concerns regarding the
commodification of reproductive Labor.

Legislation within the boundary of reasonable restriction

4. The respondent humbly submits that the legislative provision is not in violation
of the constitutional goals of right to trade and profession and right to life and
personal liberty as every fundamental right comes with certain reasonable
restrictions. Supreme Court of Vardaan, in multiple rulings, has held that
reasonable classification based on ethical and socio-economic concerns is valid
if it is based on a legitimate policy goal2. The distinction between altruistic and

2
Chiranjit Lal Chowdhuri vs The Union of India & Others 1951 AIR 41
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commercial surrogacy satisfies this test, as it seeks to prevent the reduction of

human reproduction to a commercial transaction.

5. In KM Nanavati v. State of Maharashtra 3, the Supreme Court held that the

exercise of fundamental rights must be balanced against the interests of society.
Similarly, in Murli S. Deora v. Union of India4, the Court upheld the State’s
authority to impose restrictions on individual rights when they conflict with
broader public welfare considerations.

6. The Ban acts as proportionate with justifiable restriction under Article 19(6) and
Article 21, which permit the State to impose reasonable restrictions on
fundamental rights in the interest of social welfare and morality.5 The ban on
commercial surrogacy is a proportionate measure, ensuring that surrogacy
remains an ethical practice rather than a commercial enterprise. The core rationale
behind prohibiting commercial surrogacy is that it disproportionately affects
economically disadvantaged women, coercing them into surrogacy out of
financial desperation rather than genuine consent. This undermines their
autonomy, agency, and right to self-determination, reducing their reproductive
role to a commercial transaction rather than a personal choice.

7. Commercial surrogacy raises profound ethical concerns about the

commodification of human life and the reproductive process. The Supreme Court
in Navtej Singh Johar v. Union of India6 held that constitutional morality must
guide the interpretation of rights and public policy decisions. In this context,
allowing commercial surrogacy would contradict constitutional morality, which
upholds human dignity and prohibits the instrumentalization of women’s bodies
for profit-driven enterprises.

8. The courts have consistently upheld the principle that individual freedoms can be
curtailed when the unrestricted exercise of such freedoms results in harm to others
or undermines public welfare. For instance, in cases concerning human

3
1962 AIR 605
4
AIR 2002 SUPREME COURT 40
5
Anuradha Bhasin v. Union of India AIR 2020 SUPREME COURT 1308
6
AIR 2018 SUPREME COURT 4321
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trafficking, organ trade, and exploitative labour practices, legislative restrictions

have been imposed to protect vulnerable groups from coercion and
commodification. Commercial surrogacy falls within a similar domain, where
economic vulnerabilities create an environment of exploitation. Thus, the ban on
commercial surrogacy serves a legitimate State Interest and is not an
unconstitutional restriction.

9. Moreover, the Surrogacy (Regulation) Act, 2021 does not impose an absolute ban
on surrogacy; rather, it permits altruistic surrogacy, where a woman voluntarily
agrees to bear a child for another couple without financial inducement. This
demonstrates that the legislative intent is not to prohibit surrogacy altogether, but
to regulate its practice in an ethical and non-exploitative manner. The allowance
of altruistic surrogacy ensures that intended parents who genuinely require
surrogacy as a means of parenthood are not left without options, while
simultaneously preventing the commercial exploitation of surrogates.

10. The Supreme Court in Common Cause v. Union of India7 emphasised that human
dignity is an essential component of the right to life under Article 21. The
commercialisation of surrogacy reduces women’s reproductive function to a
financial transaction, which is inconsistent with human dignity and equality
principles. Free and informed consent is a cornerstone of bodily autonomy, as
upheld in Suchita Srivastava v. Chandigarh Administration 8, where the Supreme
Court of India emphasised that a woman’s reproductive choices must be made
voluntarily, free from coercion or external pressure. In the context of commercial
surrogacy, the financial desperation of surrogate mothers undermines the
voluntary nature of consent, making it more akin to economic compulsion rather
than genuine choice. The National Commission for Women (NCW) has reported
cases where women were misled or coerced into surrogacy contracts, often
receiving inadequate compensation, and facing health complications without
proper medical care.9

7
AIR 2018 SUPREME COURT 1665
8
AIR 2010 SUPREME COURT 235
9
(Jan. 20, 2012), [Link]
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Legislation brought in tune with the proportionality test

11. The principle of proportionality plays a crucial role in determining whether a
restriction on fundamental rights is justifiable. In K.S. Puttaswamy v. Union of
India10, the Supreme Court applied the proportionality test to evaluate whether
restrictions on the right to privacy were constitutionally valid. The test involves
three key steps:

1. Legitimate Aim: The law must pursue a legitimate objective.

2. Necessity: The restriction must be necessary to achieve the objective, and no less
restrictive alternative should be available.
3. Proportionality: The benefits of the restriction must outweigh the harm caused
by it.

i. Objective
The prohibition on commercial surrogacy is directly linked to the legitimate objective
of preventing economic coercion of women and the commodification of children.
Empirical studies have documented how commercial surrogacy disproportionately
affects economically disadvantaged women, forcing them into surrogacy out of
financial desperation rather than genuine choice. The supreme Court in Suchita
Srivastava v. Chandigarh Administration held that reproductive autonomy must be
exercised freely and not under coercive economic circumstances. By banning
commercial surrogacy, the law ensures that women do not become reproductive
laborers for profit-driven fertility markets, thereby maintaining the dignity and
autonomy of surrogate mothers.

ii. Least Restrictive Means

The prohibition does not eliminate all forms of surrogacy but rather allows altruistic
surrogacy, which is a less exploitative, more ethically sound alternative. Altruistic
surrogacy ensures that the process is driven by compassion rather than financial
transactions, reducing the risks of exploitation and commodification. In Javed v.
State of Haryana (2003), the Supreme Court upheld reasonable State restrictions
when they are necessary for achieving a social welfare objective. The law

10
Supra 1
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commission report also laid emphasis why compensatory surrogacy was not adopted.
Thus, the availability of altruistic surrogacy demonstrates that the restriction is not
absolute but carefully tailored to address specific concerns while still allowing
individuals to pursue surrogacy in an ethical manner.

iii. No Disproportionate Burden on Fundamental Rights

The regulation does not impose a blanket ban on reproductive rights; rather, it
restricts only commercial transactions related to surrogacy, which are not a
fundamental right under the Constitution. The right to reproduction does not extend
to engaging in commercial contracts for surrogacy—a point upheld by courts in
multiple jurisdictions. In Baby Manji Yamada v. Union of India11, the Supreme Court
acknowledged the complexities of commercial surrogacy and emphasized the need
for State intervention to regulate reproductive technologies in the interest of public
policy. Since intended parents can still pursue parenthood through legal alternatives
such as altruistic surrogacy or adoption, the restriction does not disproportionately
curtail reproductive rights.

Imposition on the law within the state limits –

12. The Surrogacy (Regulation) Act, 2021 aims to regulate commercial surrogacy
across India, invoking Union legislative competence as under Entry 6 of the
Union List which provides the Union with the authority to legislate on “matters
relating to the medical profession” and “health” at a national level. Entry 23 of
the Concurrent List to legislate on issues related to "education", "welfare of
women and children", and “medical care”.

13. The act is brought in consonance with the duty laid upon the state under the
constitution of vardaan, where the state acted Against Trafficking & Forced Labor
12
as Commercial surrogacy, if left unregulated, has the potential to function as a
form of reproductive trafficking, where economically disadvantaged women are
coerced into surrogacy purely for financial gain.

11
AIR 2009 SUPREME COURT 84
12
Article 23 - Traffic in human beings and beggar and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with law.
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14. The surrogacy (Regulation) Act, 2021, ensures that surrogacy remains a voluntary
and ethical process, free from financial inducements that could exploit vulnerable
women. In the landmark judgement of Indira Sawhney v. Union of India13 the Court
recognised that protecting weaker sections from structural exploitation is a
legitimate constitutional objective, justifying affirmative regulatory interventions.

15. Vardaan being a signatory to international convention in accordance with Art 51 of

the Constitution have to enact in laws in consonance with the international standards
such as Article 35 of the United Nations Convention on the Rights of the Child
(CRC) requires countries to prevent the sale, trafficking, and abduction of children.

16. There is no explicit or implied fundamental right to commercial surrogacy in the

Constitution of Vardaan. The recognition of reproductive rights does not include a
right to exploit reproductive capabilities for financial transactions. Just as the State
prohibits the commercialization of human organs under the Transplantation of
Human Organs Act, 1994, it has the authority to regulate commercial surrogacy to
prevent the commodification of women’s reproductive functions.

Ethical & International Precedents Supporting Altruistic Surrogacy

17. Countries Adopting Altruistic Surrogacy - Several developed nations have opted
for an altruistic surrogacy model to prevent commercial exploitation while still
allowing intended parents to have children through surrogacy. Countries like
Canada, Australia, and the United Kingdom prohibit commercial surrogacy but
allow altruistic surrogacy, reinforcing the principle that reproductive rights must be
exercised within an ethical and regulated framework.

18. International Obligation – Vardaan being a signatory to international convention

in accordance with Art 51 of the Constitution have to enact in laws in consonance
with the international standards such as Article 35 of the United Nations Convention
on the Rights of the Child (CRC) requires countries to prevent the sale, trafficking,
and abduction of children. The United Nations Convention on the Elimination of
Discrimination Against Women (CEDAW) supports State measures to protect

13
AIR1993SC477
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women from exploitation, which aligns with the rationale for banning commercial
surrogacy.

19. European Court of Human Rights (ECHR) – Upholding State Regulation of

Surrogacy. In S.H. and Others v. Austria14, the ECHR upheld Austria’s
restrictions on assisted reproductive technologies, recognizing that states have
the sovereign right to regulate surrogacy and reproductive practices to uphold
ethical and social standards. The judgment reinforced the idea that while
reproductive autonomy is a fundamental right, it must be exercised in a manner
that does not lead to commercial exploitation or harm to vulnerable individuals.
In Z v. Poland15, the ECHR recognized that States have broad discretion in
regulating reproductive healthcare policies, provided that such regulations serve
a legitimate public interest.

20. Indian Judicial Precedents Supporting Ethical Surrogacy -In Baby Manji Yamada
v. Union of India, the Supreme Court recognized the complexities of surrogacy
and the need for regulatory safeguards to prevent the misuse of surrogacy
arrangements. The ruling emphasised that surrogacy laws must ensure the
protection of surrogate mothers, intended parents, and children born through
surrogacy.

In Jan Balaz v. Union of India16 the Gujarat High Court noted that commercial
surrogacy in India was becoming an industry with significant ethical concerns,
warranting strict legislative oversight. The same view was upheld in the law
commission report where emphasis was laid upon adoption of pragmatic approach
by legalising altruistic surrogacy arrangements and prohibit commercial ones17.
The Surrogacy (Regulation) Act, 2021, by allowing only altruistic surrogacy,
adheres to this principle of ensuring legal and ethical safeguards.

14
Application no. 57813/00
15
Application No. 46132/08
16
Civil Appeal No(s). 8714/2010
17
Government of India Law Commission of India. Available at:
[Link]
(Accessed: 02 March 2025).
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II. Whether restricting access to surrogacy and ART services to only married
heterosexual couples violate the fundamental right to equality by excluding
single intending parents, LGBTQ+ individuals, and unmarried couples without
a reasonable classification?

The counsel on behalf of the respondent humbly submits before this Hon’ble Court
that surrogacy services being limited to only married heterosexual couples does not
lead to violation of the rights of single intending parents, LGBTQ+ communities, and
unmarried couples on the following grounds –

Marriage as a legitimate basis of classification

21. As laid down under Art 14 a law is said to be legitimate if it is built upon rational
nexus meeting with the objective of the act. The restriction of surrogacy to married
heterosexual couples is based on biological, psychological, and sociological
factors that contribute to the stable upbringing of a child. The traditional family
unit consisting of a mother and a father is widely accepted as the most stable
structure for child-rearing, as recognized in multiple national and international
jurisprudence.18 Marriage provides a structured, legally enforceable commitment,
ensuring that both parents are equally responsible for the child’s upbringing.
Granting surrogacy rights to single individuals or same-sex couples could lead to
situations where the child lacks a stable familial structure, which is a legitimate
concern for the state. Under Art. 21 the state has a constitutional duty to protect
the rights of children born through surrogacy. A child’s best interests and long-
term well-being must be paramount considerations, which justifies the preference
for a married heterosexual couple over other intended parents. Under article
15(3): Protective Discrimination in Favor of Women and Children, the state has
the power to enact special provisions for the welfare of women and children,
ensuring that surrogacy remains an ethical and non-exploitative process.

22. Drawn on Intelligible Differentia and Rational Nexus–

i. Intelligible Differentia: The restriction on surrogacy for single parents,
LGBTQ+ individuals, and unmarried couples is based on scientific,

18
Dr Ekta Singh vs Mr Rajeev Giri [Link].2786/2022(GW)
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psychological, and social factors, including:

Biological Considerations: A child’s genetic and medical history is best documented
in a biologically connected, legally recognized family structure.19
Emotional Stability: Studies have shown that children raised in a stable two-parent
household perform better on socio-emotional parameters.20
Legal Certainty: Surrogacy contracts often involve legal complications, and ensuring
that both parents are married reduces the risk of custodial or inheritance disputes.
ii. Rational Nexus -
The rationale behind this classification is not arbitrary, but rather advances the
legitimate objectives of the state, namely:
Ensuring Child Welfare – The primary goal is to secure the best interests of the child,
ensuring they are raised in a stable and structured family environment.
Preventing Commercial Exploitation – Permitting surrogacy for all categories of
individuals could lead to surrogacy tourism, exploitation of poor women, and legal
uncertainty regarding parental rights.
Maintaining Social Stability – As surrogacy laws impact public morality and cultural
norms, the state has the discretion to enforce regulations aligning with societal values.

23. Thus, Marriage is a legally recognized institution that establishes clear parental
rights and responsibilities, ensuring that children born out of surrogacy are not
subjected to legal disputes, identity crises, or potential abandonment. The
Supreme Court, in Indra Sarma v. V.K.V. Sarma 21, reaffirmed that the institution
of marriage provides legal stability, social recognition, and a clear framework of
parental responsibility, which are essential when determining eligibility for
surrogacy.

Best Interests of the Child Doctrine -

24. The principle of parens patriae empowers the government to regulate surrogacy
in a manner that prioritizes the welfare of the child over the desires of the intended
parents. The best interests of the child doctrine, which has been upheld in
19
Air India v. Nargesh Meerza
20
Convention on the Rights of the Child, U.N. Gen. Assembly, Dec. 20, 1989,
A/RES/44/25, [Link]
child?utm_source=[Link]
21
2013 AIR SCW 6783

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numerous judicial precedents, mandates that legal policies surrounding

reproductive technologies must ensure the child’s psychological, emotional, and
social well-being. Thus, the state has a compelling interest in ensuring that
children born through surrogacy enter a secure family environment, and this is
best guaranteed by limiting surrogacy to married heterosexual couples, as
recognized by multiple legal systems worldwide such as the European Court of
Human Rights (ECHR) and the UN Convention on the Rights of the Child
(UNCRC), emphasize the importance of a stable family environment for a child’s
well-being. Many nations, including Germany, France, Spain, Italy, and China,
impose similar restrictions on surrogacy to preserve family stability.

Classification on the Basis of Gender

25. The act although restricts the surrogacy services only to divorced or widowed
women and not to men is upon the societal stigma it brings with it. As a divorced
or widowed women pregnancy is not seen moral it restricts them of their right to
parenthood. 22Considering the case of men, they have the right to adopt but with
certain restriction23, such restrictions cannot be imposed in the case of surrogacy
and thus making it difficult to regulate.

26. In Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee24 sex was
held to be a permissible classification. While dealing with this aspect of the
matter this Court observed thus:- Article 14 is general and must be read with the
other provisions which set out the ambit of fundamental rights. Sex is a sound
classification and although there can be no discrimination in general on that
ground, the Constitution itself provides for special provisions in the case of
women and children.

Exclusion of LGBTQ+ and Separation of Power -

27. The exclusion LGBTQ+ community from the ambit of surrogacy even after
being recognised in the eyes of law lies deep down in the power separation
between the tier of democracy. Marriage not being a fundamental right and

22
228TH Law Commission Report
23
Dhanraj v. Suraj Bai 1972 Raj LW 612
24
1954 AIR 321
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matter of choice is upon the legislation to frame laws. The same was upheld by
the constitutional bench where same sex marriage was not given legal
recognition and thus, they cannot avail the rights arising from the same.
Whereas in the case of heterosexual marriage of men and transwomen, 25it is not
biologically possible for the transwomen to generate gametes thus allowing
them would defeat the purpose of the law leading to the sale of female eggs.
The law is in consonance with the other existing laws like the JJ act under which
the LGBTQ+ are not eligible for adoption recognising the right to adopt 26is not
a fundamental right and thus have to formulated while protecting the rights of
children.

Thus, the restriction on surrogacy and ART services to married heterosexual

couples is constitutionally valid, as it is based on reasonable classification,
serves legitimate state interests, and aligns with international best practices. The
government’s duty to prevent commercial exploitation, ensure child welfare, and
maintain social stability justifies these regulations under Articles 14, 15, and 21
of the Constitution of Vardaan.

25
Arunkumar vs The Inspector General of Registration,
26
Debarati Nandee vs Union Of India & Anr.

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III. Whether the right of couple to avail surrogacy being restricted to married
couples between the age of 23 to 50 years in the case of female and between 26
to 55 years in the case of male as it is being provided under Section 4(iii)(c)(I)
read with Section 2(I)(h) of the Surrogacy (Regulation) Act, is constitutional?

The counsel on behalf of the respondent humbly submits before this Hon’ble court
that the age limit set under Section 4(iii)(c)(I) read with Section 2(I)(h) of the
Surrogacy (Regulation) Act, 2021 is drawn keeping in mind the biological cycle
of the intending couple leading to a reasonable basis of classification and not
discrimination on the basis age. The objective aligns while protecting the rights of
an unborn child along with the right of parenthood.

28. The regulation recognizes that surrogacy is not merely a private arrangement but
involves significant public policy concerns, such as child welfare, parental
stability, and the dignity of surrogate mothers. Article 47 of the Constitution
mandates the state to promote public health, and restricting surrogacy based on
age and marital status aligns with this directive. Additionally, in State of Madras
v. V.G. Row27, the Court held that restrictions imposed by law are valid if they
serve a legitimate governmental objective and are not arbitrary.

Under Article 14, any classification made by legislation must satisfy the twin
criteria of intelligible differentia and rational nexus.

i. Intelligible Differentia: The distinction between married and unmarried

individuals, and between different age groups, is based on well-established
biological, psychological, and social factors. The marital requirement
ensures that the child born through surrogacy has legally recognized
parents who can provide a stable upbringing. Similarly, age restrictions are
imposed to ensure that parents are physically and mentally capable of
raising a child.28

27
1952 AIR 196
28
Jeshy C.O vs Union of India WA No. 30 of 2019
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ii. Rational Nexus: The classification serves a legitimate state interest in

protecting child welfare and preventing the exploitation of surrogate
mothers. In Air India v. Nargesh Meerza 29, the Supreme Court upheld
classifications based on rational criteria, provided they are not arbitrary or
unreasonable. Here, the marital and age restrictions directly contribute to
the objectives of the Surrogacy Act by ensuring responsible parenthood
and ethical surrogacy practices.
29. Protective discrimination under Article 15(3) allows special provisions for women
and children, justifying the state's interest in regulating surrogacy. The restrictions
are not discriminatory but necessary safeguards to ensure ethical surrogacy
practices.
30. The right to reproduction is not an absolute right under Article 21 but is subject to
reasonable restrictions in the interest of public health and welfare. In Javed v.
State of Haryana30, the Supreme Court upheld restrictions on personal choices in
favour of larger societal interests, a principle equally applicable to surrogacy
regulations. The court in Rajitha P.V. v Union of India 31upheld the same.
Thus, these restrictions pass the Article 14 test of reasonable classification, align
with Article 21’s limitations on absolute reproductive rights, and are supported by
both domestic and international precedents. Given the complexities involved in
surrogacy, legislative discretion must be respected under the Doctrine of Judicial
Restraint, as held in Municipal Corporation of Delhi v. Gurnam Kaur32.
Therefore, the marital and age-based restrictions should be upheld as
constitutional, serving the broader public interest in regulating reproductive health
and family stability.

Biological and Medical Justifications for Age Limits (23-50 for Women, 26-55
for Men)
31. The age restrictions imposed by the Surrogacy Act are based on medical evidence
concerning reproductive health. Studies have shown that extreme parental age can
lead to increased health risks for both the child and the surrogate mother. The

29
1981 AIR 1829
30
(2003) 8 SCC 369
31
WP(C) NO. 403 OF 2025
32
1989 AIR 38

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World Health Organization (WHO) recognizes that childbearing beyond certain

age limits can lead to pregnancy complications, genetic abnormalities, and higher
neonatal risks.33 In Vinod Soni v. Union of India 34, the Court upheld the state's
right to regulate reproductive technologies based on scientific and medical
considerations.

Ensuring Adequate Parenting Duration for Child’s Welfare

32. A child’s well-being depends not only on the initial phase of parenthood but also
on long-term parental support. Restricting surrogacy to individuals within a
reasonable age bracket ensures that children receive sustained emotional and
financial support throughout their formative years. In M.C. Mehta v. State of
Tamil Nadu 35, the Court emphasized that children’s rights must be paramount in
policy decisions. Applying this principle, the state has a compelling interest in
ensuring that children born through surrogacy are not left parentless due to
advanced parental age.

Regulation in Consonance with already existing laws –

33. The Juvenile Justice Act, 2015 read with regulation 5 of CARA36 lays down a
prospective age limit for adoption. With regard to the contention in Shabnam
Hashmi v. Union of India and Others37, the Apex Court has held in unequivocal
terms that there is no fundamental right vested in prospective adoptive parents to
adopt a child. The right to adopt is a legal right which must confirm to the various
reasonable restrictions imposed by the Rules or Regulations which are framed to
protect the best interest of the child. Similarly, in the case of surrogacy it must be
kept in mind that the interest of the child is prioritised and given enough
weightage required.

33
The American College of Obstetricians and Gynecologists, Pregnancy at Age 35 Years or Older, ACOG
Obstetric Care Consensus (Aug. 2022)
34
2005CRILJ3408
35
AIR 1997 SUPREME COURT 699
36
Cara, [Link]
37
(2014)4 SCC 1
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IV. Whether the exclusion of foreign nationals from accessing surrogacy and ART
services under the Surrogacy (Regulation) Act, 2021 and the Assisted
Reproduction Technology Act, 2021, violate the fundamental rights guaranteed
under the constitution of Vardaan?

The counsel on behalf of the respondent humbly submits before this Hon’ble
court that the exclusion of the foreign nationals is not on the basis of place of
birth but to protect the rights of its citizens and is justified on the following
grounds –

Preventing the Commercialization of Surrogacy and “Womb Tourism”

34. Before the enactment of these laws, Vardaan was a major destination for foreign
couples seeking surrogacy, leading to exploitative commercial surrogacy
practices. The Supreme Court, in Baby Manji Yamada v. Union of India38,
recognized the legal and ethical concerns arising from foreign nationals using
surrogacy services in India and highlighted the lack of regulatory safeguards.
Unregulated commercial surrogacy led to women being coerced into becoming
surrogate mothers under exploitative conditions.

Protecting Surrogate Mothers from Exploitation and Ensuring Legal

Recourse
35. Foreign nationals who commissioned surrogacy often left India without fulfilling
financial and legal responsibilities, resulting in surrogate mothers being
abandoned without adequate compensation or medical support. In Jan Balaz v.
Anand Municipality and Ors.39, the Gujarat High Court highlighted the legal
complexities of granting nationality to children born via surrogacy to foreign
nationals. By restricting access to foreign nationals, the government ensures that
Indian surrogate mothers have legal recourse against intended parents, thereby
reducing the risk of exploitation.

38
(2008) 13 SCC 518
39
AIR 2010 Guj 21
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Exclusion of Foreign Nationals not in violation of Fundamental Rights –

36. Two-Pronged Test for Reasonable Classification

As a law to be violative of Article 14 it has to be in consonance with the two

conditions:
i. Intelligible Differentia – There must be a clear distinction between the groups being
classified (Indian citizens vs. foreign nationals).

ii. Rational Nexus – The classification must be linked to a legitimate government

objective (preventing commercialization, protecting surrogate mothers, and ensuring
legal accountability).

The restriction on foreign nationals meets both conditions because:

 Indian citizens and foreign nationals do not stand on equal footing concerning
fundamental rights.
 Regulating surrogacy access ensures that the practice remains ethical and non-
exploitative.
 The law prevents India from becoming a hub for commercial surrogacy at the expense
of its women’s welfare.

The Supreme Court of India, in Dr. Subramanian Swamy v. Director40, reaffirmed

that Article 14 does not prohibit reasonable classification as long as there is a
legitimate state interest.

37. The right to life under Article 21 does not extend to an absolute right to
parenthood through surrogacy. In Suchita Srivastava v. Chandigarh
Administration41, the Supreme Court ruled that reproductive autonomy is subject
to reasonable restrictions. The exclusion of foreign nationals is a policy decision
aimed at protecting national interests.
38. Though, Fundamental Rights under the Constitution of Vardaan are not absolute
for foreign nationals. Article 21, which guarantees the right to life and personal
liberty, does not extend absolute reproductive rights to foreign individuals. 42The

40
CBI, (2014) 8 SCC 682
41
(2009) 9 SCC 1
42
State Of Arunachal Pradesh vs Khudiram Chakma 1994 AIR 1461
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state has sovereign authority to regulate medical and reproductive services in

accordance with national interest, public policy, and ethical considerations.
39. Article 15(1) prohibits discrimination based on religion, race, caste, sex, or place
of birth, but it explicitly applies to Indian citizens. In Louis De Raedt v. Union of
India43, the Supreme Court held that foreign nationals do not enjoy the same
fundamental rights as Indian citizens, except for those explicitly granted to them.
40. Thus, Surrogacy Is a Privilege, not a Fundamental Right the state has the authority
to regulate assisted reproductive services in the same way it regulates medical
procedures, adoption, and organ transplants. Foreign nationals do not have a legal
or constitutional entitlement to demand access to India’s surrogacy industry.

Ensuring State Control Over Reproductive Health Policies

41. The regulation of reproductive health services falls under state sovereignty, and
India, like many other countries, has the right to restrict foreign nationals from
accessing its reproductive medical services. Countries like Germany, France, and
Canada have implemented strict surrogacy laws to prevent foreign nationals from
exploiting their medical infrastructure. The Doctrine of Territorial Nexus justifies
such regulatory measures, ensuring that surrogacy laws serve the best interests of
Indian society rather than catering to foreign demand.
42. The state is entitled to make classifications based on nationality, as long as they
serve a legitimate public interest. In Subramanian Swamy v. CBI44, the Supreme
Court reaffirmed that Article 14 allows reasonable classifications if they are based
on an intelligible differentia and serve a rational objective.
43. The state has the sovereign authority to regulate healthcare access based on
national priorities. In Vincent Panikurlangara v. Union of India45, the Supreme
Court held that public health is a fundamental duty of the state, allowing it to
impose restrictions in the interest of its citizens.

43
(1991) 3 SCC 554
44
(2014) 8 SCC 682
45
(1987) 2 SCC 165
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Presumption of Constitutionality of the Law

44. A law passed by Parliament is presumed to be constitutional unless proved
otherwise. In Charanjit Lal Chowdhury v. Union of India46, the Supreme Court
held that courts should defer to legislative wisdom unless the law is manifestly
arbitrary.
45. In State of Bihar v. Bihar Distillery Ltd.47, the Supreme Court held that courts
must give due deference to legislative intent, particularly in socio-economic
policies.
46. In Government of Andhra Pradesh v. P. Laxmi Devi48, the Supreme Court ruled
that economic and social legislation should not be invalidated merely because it
imposes restrictions.
47. Arguendo, the possibility of trafficking of women for providing surrogacy to
foreign nationals and the mushrooming of illegal clinics following the ban on
surrogacy for foreigners is not valid grounds for declaring the Act ultra vires. The
prohibition of any act by the state leads to such acts being carried out illegally.
This does not in itself make legislation unconstitutional or arbitrary. Possibility of
abuse of any enactment is no ground to strike it down."49

Issues of Stateless Children and Legal Conflicts

48. Many countries do not recognize children born through surrogacy as their citizens,
leading to statelessness and legal limbo. In Jan Balaz v. Anand Municipality and
Ors., 50the Gujarat High Court faced difficulties in granting Indian citizenship to
children born through surrogacy to a German couple. To prevent diplomatic
conflicts and international legal disputes, many nations prohibit or strictly regulate
foreign access to surrogacy.

Foreign Nationals Often Lack Binding Legal Commitments

49. Unlike Indian citizens, foreign nationals may leave the country without fulfilling
legal or financial obligations towards the surrogate or child. Restricting access

46
AIR 1951 SC 41
47
(1997) 2 SCC 453
48
(2008) 4 SCC 720
49
Kishorilal v. The State, A.I.R. 1957 (Punj.) 244.
50
AIR 2010 Guj 21
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ensures accountability within a national legal framework, preventing situations

where Indian authorities are left to handle abandoned children or disputes.

Global Legal Precedents Justify National Control Over Surrogacy

50. Countries like France, Germany, Spain, and Thailand have either completely
banned or restricted surrogacy for foreign nationals to prevent similar legal
complications. The European Court of Human Rights (ECHR) in Mennesson v.
France, App No. 65192/11 (2014), ruled that surrogacy restrictions for foreign
nationals are justified to prevent legal inconsistencies.

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PRAYER

Therefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed that this Hon’ble Court may be pleased to adjudge and declare
that:
1. To declare that the following Writ Petition filled Article 32 is not maintainable under
the of the Constitution of Vardaan, as it does not involve the violation of fundamental
rights and no substantial questions of constitutional law is raised.
2. To uphold the constitutional validity of the Surrogacy Regulation Act, 2021 and its
rules under section 4(ii)(b) and 4(ii)(c).
3. To declare that the Surrogacy Regulation Act, 2021 does not discriminate along the
citizens of the country and the classification drawn is in lines with objective of the
act.
4. To declare that the upper age limit set by the legislation is brought to balance the right
of child and that of parent and thus within the constitutional ambit.
5. To declare that the exclusion of foreigners as a class under Surrogacy Regulation Act,
2021 therein are justified, being based on reasonable classification, and that the Act
does not breach Vardaan’s international obligations or anti-discrimination principles
under constitutional and international law.
6. Pass any other order or direction that may be deemed fit and proper in the facts and
circumstances of the case.

And pass any other order as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the interest of justice, Equity and Good
Conscience. And for this act of kindness and justice and RESPONDENT shall be
duty bound and forever pray.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED

s/d-
COUNSELS FOR THE RESPONDENT

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