KRMUMCC03R

KRMUMCC - INTER UNIVERSITY NATIONAL MOOT COURT COMPETITION
TEAM CODE KRMUMCC03

:
K.R. MANGALAM UNIVERSITY
INTER-UNIVERSITY MOOT COURT COMPETITION
BEFORE THE HONOURABLE HIGH COURT OF APLHA
PUBLIC INTEREST LITIGATION
W.P.(CIVIL) NO. OF 2022
UNDER ARTICLE 226 OF CONSTITUTION OF INDISTAN
IN THE MATTER OF
MR.MANOJ AND OTHERS ...................................... PETITIONERS
VERSUS
UNION OF INDISTAN & ANOTHER ................. RESPONDENTS
UPON SUBMISSION TO THE HON'BLE JUDGES OF THE HIGH

COURT OF ALPHA
MEMORIAL ON BEHALF OF RESPONDENT
1
TABLE OF CONTENTS
S.NO CONTENTS PAGE

1. LIST OF ABBREVIATIONS 3
2. INDEX OF AUTHORITIES 4-8
3. STATEMENT OF JURISDICTION 9
4. STATEMENT OF FACTS 10
5. STATEMENT OF ISSUES 11
Issue 1: Whether the petition filed under article 226 of the
constitution is maintainable ?
1.1. The petitioner has no cause of action
1.2. Impugned does not violate fundamental rights
1.3. Judiciary has no say in the policy matter of legislature.
Issue 2. Whether the impugned act is

constitutionally valid?
2.1. The act is not in violation of right to equality guaranteed
under article 14 , 15 of the constitution
2.3. The impugned act is not in violation of art. 21
Issue 3: Whether the ban on commercial surrogacy and the

replacement of altruistic surrogacy is valid ?
3.1. The act intends to protect the rights of surrogate mothers
3.2. The ban on commercial surrogacy is said to be valid
Issue 4: Whether the surrogacy act is inconsistent and

discriminatory?
4.1. The reason behind the silent provision on the single men
(unmarried & divorced & widow) and male &
male couples from surrogacy
4.2 The couple with their own existing child cannot avail
another through surrogacy.
4.3. The surrogacy act doesn’t include the LGBTQ community
and live-in couples in the surrogacy act to be a
surrogate
parents
6. SUMMARY OF ARGUMENTS 12-13

7. ARGUMENTS ADVANCED 14-30
8. PRAYER 31
2
LIST OF ABBREVIATIONS
Sec. Section
AIR All India Report
Art. Article
Hon’ble Honorable
Ltd. Limited
SC Supreme Court
u/s under section
r/w read with
Yrs. Years
v./vs. Versus
Cr.L.J. Criminal Law Journal
& and
Pg. Page
Ors. Others
Anr. Another
Edn. Edition
Assisted Reproductive Technology (Regulation)
ART 2021 Act, 2021
Surrogacy Act Surrogacy (Regulation) Act, 2021
3
INDEX OF AUTHORITIES
CASES REFERRED
1 Janata Dal Vs H.S.Choudhary, (1992), (4) Scc 305
2 Dattaraj Nathuji Thaware Vs State Of Maharashtra (2005 ) 1 Scc 590
3 Bhandhua Mukti Morcha Vs Union Of India & Ors , 1984 Scr (2) 67
4 Nirmal Singh Kahlon Vs. State Of Punjab & Ors., (2009) 1 Scc 441
5 Common Cause Vs Union Of India & Ors , Writ Petition (Civil) 580 Of 2003.
6 Dr.B.Singh Vs Union Of India & Ors, (2004) 3 Scc 363
7 S.P. Gupta Vs Union Of India, Air (1982) Sc 149.
8 Kazhi Lhendhup Dorji V Central Bureau Of Investigation (1994) Scr 201
9 Kushum Lata Vs Union Of India Manu Scc 8225/ 2006
10 Chettriya Pardhoshan Mukti Vs State Of Utthar Pradesh (1990) Scc 2000
11 Ibid
Guruvayur Devaswom Managing Committee Vs Ck Rajan & Ors.Air 2004 Sc 561 : Bp

12 Banerjee , Writ Remedies ( 4 Th Edition Rep. 2008)
13 Balco Employee Union ( Regd) Vs Union Of India & Ors., Air 2002 Sc 350
14 Balco Employee Union ( Regd) Vs Union Of India & Ors., Air 2002 Sc 350
15 Laxmi Khandsari V. State Of Uttar Pradesh, Air 1981 Sc 873.
16 Govind V. State Of M.P., Air 1975 Sc 1378.
17 De Armond V. State, Okl. Cr., 285 P.2d 236
18 Jagmohan Singh V. State Of U.P., (1973) 1 Scc 20
19 Suresh Kumar Koushal V. Naz Foundation, (2014) 1 Scc 1
4
20 Maneka Gandhi V. Union Of India, Air (1978) 597.
21 Kharak Singh V. State Of Up And Others, (1964) 1 Scr 332.
22 Government Of Andhra Pradesh Vs Smt.Laxmi Devi (2008) 8jt 639
23 State (Government Of Nct Of Delhi) Vs. Prem Raj (2003) Scc 121
24 Supreme Court Employees Welfare Association V. Union Of India (1989) 4 Scc
25 M.G Badappanavar V. State Of Karnataka, Air 2001 Sc 260
26 Venkataramaiya’s Law Lexicon Volume 1- Human Rights
27 In Re Special Courts Bill, (1979) 1 Scc 380, 423.
28 State Of West Bengal V. Anwar Ali Sarkar, Air 1952 Sc 75
29 Https://Www.Healthline.Com/Health/Pregnancy/Best-Age-To-Get-Pregnant
30 Girdhar V. State, Air 1953 Mb 147
31 94 U.S. 113 (1876)
32 1978 Air 597, 1978 Scr (2) 621
33 1981 Air 746, 1981 Scr (2) 516
Consumer Education And Research Centre And Ors. V. Union Of India And Ora, Air 1995
34 Sc 922,
35 Romesh Thappar Vs The State Of Madras Air 1950 Sc 124 , 1950 Scr 594
36 Modern Dental College & Research Centre V. State Of M.P (2009) 7 Scc 751
37 Govind V. State Of Madhya Pradesh, Air 1975 Sc 1378.
38 Modern Dental College & Research Centre V. State Of M.P (2009) 7 Scc 751
39 Air 2003 Sc 3450, 2003
40 [K.S. Puttaswamy V. Union Of India,(2017) 10 Scc 1]
41 Rohit Shekhar Vs Narayan Dutt Tiwari & Anr On 27 April, 2012
5
42 (1996) 8 Scc 296.
43 Kesavananda Bharati V. State Of Kerala ,(1973) 4 Scc 225
44 Roe V. Wade, 410 U.S. 113 (1973).
45 Suchita Srivastava & Anr Vs Chandigarh Administration On 28 August, 2009
46 Baby Manji Yamada Vs Union Of India & Anr On 29 September, 2008
47 Kiran Infertility Centre Pvt ... Vs Ito, Ward-2(1),Hyd, Hyderabad On 8 April, 2021
48 R.D. Upadhyay Vs State Of A.P. & Ors On 13 April, 2006
49 Sushma Devi Vs State Of Himachal Pradesh And Ors On 4 March, 2021
Shiva Ent Ydyog Thru. Pro. Satish And Ors Vs National Human Rights Commission And
50 Ors On 21 January, 2011
Albert Einstien Society Of Human Gametes, Hyderabad. Vs. Director Of Income-Tax 26

51 August, 2015
Narsimhudu, Mahabubnagar Dist 17 ... Vs Prl. Secretary, Gad, Hyd Another On 12

52 October, 2018
53 Uday Vs State Of Karnataka (4 Scc 46), 2003.
54 Sec.11(Iii) Of The Hindu Adoption And Maintenance Act,1956
55 Sec.11(Iv) Of The Hindu Adoption And Maintenance Act,1956
Navtej Singh Johar & Ors. Versus Union Of India Thr. Secretary Ministry Of Law And
56 Justice Air 2018 Sc 4321; W. P. (Crl.) No. 76 Of 2016 D. No. 14961/2016
57 K.S. Puttaswamy And Anr. Vs. Union Of India ((2017) 10 Scc 1), (Puttaswamy I).
6
BOOKS REFERRED
1 DD Basu, “Commentary on the Constitution of India” (Vol. 1, 8th Edition)
2 DD Basu, “Commentary on the Constitution of India” (Vol. 10, 9th Edition)
3 Mulla, “The Indian Contract Act” (13 Edition) th
4 MP Jain & SN Jain, “Principles of Administrative Law” (Vol. 2, 8th Edition)
5 Bryan A. Garner, “Black’s Law Dictionary” (8th Edition)
6 VG Ramachandran, “Law of Writs” (Vol. 1, 6th Edition)
7 D.D. Basu, (Vol. 2, 14 “Shorter Constitution of India” th Edition 2010)
8 H. M. Seervai , “Constitutional Law of India” (Vol. 2, 4th Edition)
9 H. M. Seervai, “ (Vol. 3, 4 Constitutional Law of India” th Edition)
10 V.N. Shukla, Constitution Of India 49 (Mahendra Pal Singh Eds.,
WEBSITES AND LEXICONS
1 Indian Kanoon
2 Lexis Nexus
3 Manupatra
4 SCC
5. Blog Ipleader
7
STATUTES/TREATIES/ CONVENTIONS
1 Indian Constitution, 1949
2 The Assisted Reproductive Technology (Regulation) Act, 2021
3 The Surrogacy (Regulation) Act, 2021
4 The Hindu Adoption and Maintenance Act,1956
5 The Indian Contract Act, 1872
6 I.C.C. Statute, 1998
7 International Covenant on Civil and Political Rights, 1966
8 U.N. Convention on the Rights of the Child,1990
9 Universal Declaration of Human Rights, 1948
8
STATEMENT OF JURISDICTION
1. Writ Petition No. /2022 – Mr.Manoj vs Union Of Indistan & Ministry of Health and
Family Welfare
The petitioner has filed a Public Interest Litigation before the Honourable High Court of Alpha in
the matter of challenging the constitutionality of the Surrogacy act under Article 226 of the
Constitution of Indistan.
2. Writ Petition No. /2022 – LGBTQ couple vs Union Of Indistan & Ministry of Health
and Family Welfare
The petitioner has filed a Public Interest Litigation before the Honourable High Court of Alpha in
the matter of challenging that the Surrogacy act was discriminatory and abrogate their right to have
family under Article 226 of the Constitution of Indistan.
The above mentioned petitions were clubbed together by the Honourable High Court which is
backed up by the Article 226.
Article 226 1:
Empowers the High Court’s to issue, to any person or authority, including the Govt.(in appropriate
cases), directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto, certiorari.
1
Article 226. Power of High Courts to issue certain writs
9
STATEMENT OF FACTS
FACTUAL BACKGROUND:-
 In union of Indistan the surrogacy had its boom in the past twelve years, where it paved the
way for many foreign national to afford surrogacy due to the absence of the
legislation surrogacy a
 It was done through an agreements which regulates the terms and conditions of surrogacy.
 Mr.Rohan Joshi a 35 years old divorced man, wanted to become a father through surrogacy
and had signed an agreement with JHRC. In October 2021 the process for surrogacy was
initiated. The surrogate mother had also completed the series of the initial steps of surrogacy
and the process of embryo transfer was due in the month of February of 2022.
 Mr.Rohan Joshi was unaware of the amendment brought under the Assisted Reproductive
Technology (Regulations) Act,2021 and Surrogacy ( Regulation) Act, 2021, where
single men and women, live-in couples, and same sex couples are excluded. The JHRC
terminated the process stating that he is ineligible for the same and refused to refund.
MATERIAL FACTS:-
 Outraged, Mr.Manoj filed petitions against the act and it is followed up by the
LGBTQ couple, who were also desirous of a child through surrogacy also filed a petition
against the act.
POINTS IN CONTROVERSY:-
 The former claimed that it violates the right to reproduction under article-21 of the Indian
Constitution and the later claimed that it was not gender neutral .
 The High Court of Alpha has clubbed all the related petitions.
10
STATEMENT OF ISSUES
ISSUE 1: WHETHER THE PETITION FILED UNDER ARTICLE 226 OF THE

CONSTITUTION IS MAINTAINABLE ?
1.1. THE PETITIONER HAS NO CAUSE OF ACTION

1.2. IMPUGNED DOES NOT VIOLATE FUNDAMENTAL RIGHTS
1.3. JUDICIARY HAS NO SAY IN THE POLICY MATTER OF LEGISLATURE.
ISSUE 2. WHETHER THE IMPUGNED ACT IS CONSTITUTIONALLY VALID

2.1. THE ACT IS NOT IN VIOLATION OF RIGHT TO EQUALITY GUARANTEED
UNDER ARTICLE 14 , 15 OF THE CONSTITUTION
2.3. THE IMPUGNED ACT IS NOT IN VIOLATION OF ART. 21
ISSUE 3: WHETHER THE BAN ON COMMERCIAL SURROGACY AND THE

REPLACEMENT OF ALTRUISTIC SURROGACY IS VALID ?
3.1. THE ACT INTENDS TO PROTECT THE RIGHTS OF SURROGATE MOTHERS
3.2. THE BAN ON COMMERCIAL SURROGACY IS SAID TO BE VALID
ISSUE 4: WHETHER THE SURROGACY ACT IS INCONSISTENT

AND DISCRIMINATORY?
4.1. THE REASON BEHIND THE SILENT PROVISION ON THE SINGLE MEN
(UNMARRIED
&AMP; DIVORCED &AMP; WIDOW) AND MALE &AMP; MALE COUPLES FROM
SURROGACY
4.2 THE COUPLE WITH THEIR OWN EXISTING CHILD CANNOT AVAIL
ANOTHER THROUGH SURROGACY.
4.3. THE SURROGACY ACT DOESN’T INCLUDE THE LGBTQ COMMUNITY AND LIVE-
IN
COUPLES IN THE SURROGACY ACT TO BE A SURROGATE PARENTS
11
SUMMARY OF ARGUMENTS
1. WHETHER THE PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION

IS MAINTAINABLE ?
It is humbly submitted that the PIL is not tenable in the eyes of law as there is not an iota of public
interest in this case, rather
1.1. Only private interest is involved
1.1.1. Has no Locus Standi
1.2. No fundamental right has been repugnantly violated
1.3. Judiciary has no say in the policy formulation by the legislature.
The same does not grant them a locus standi to file for PIL in this petition and the court should be
cautious while deciding the maintainability of the petition.
2. WHETHER THE IMPUGNED ACT IS CONSTITUTIONALLY VALID ?
It is humbly submitted before this honourable court that the Surrogacy (Regulation) Act, 2016 is
constitutionally valid as the act is not in violation of
2.1. Right to equality guaranteed under article 14 , 15 of the constitution as ,

2.1.1.A. Object of the law is to protect surrogate mother
2.1.1.B. Classification based on age is a reasonable classification
2.1.2. Legislature is free to formulate special provisions
2.2. Right to life and personal liberty under article 21 of the constitution as it,
2.2.1. Protects the right to life and liberty of the willing mothers
2.2.2. Does not infringe on persons right to privacy
12
3. WHETHER THE BAN ON COMMERCIAL SURROGACY AND THE REPLACEMENT

OF ALTRUISTIC SURROGACY IS VALID ?
It is humbly submitted before the Hon’ble High court of Alpha that, the ban on the
commercial surrogacy is valid , where the act was implemented with the intention of protecting
the rights of surrogate mothers and to ban the commercial surrogacy in Indistan.
3.1. The act intends to protect the rights of surrogate mothers
3.2. The ban on commercial surrogacy is said to be valid
4. WHETHER THE SURROGACY ACT IS INCONSISTENT AND DISCRIMINATORY?
It is humbly submitted before the hon’ble High court of Alpha is that, the surrogacy act is
not inconsistent and discriminatory, the surrogacy act or the ARTs act in the bona fide interest of the
citizens of the Indistan. It doesn’t aim to violate/infringe the basic rights of any person or
community. The acts are acting in the best interest of the surrogate mother, child and the surrogate
parents, so it cannot be claimed that the Government is ultra virus.
4.1. The reason behind the silent provision on the single men (unmarried & divorced &
widow) and male & male couples from surrogacy
4.2 The couple with their own existing child cannot avail another through surrogacy.
4.3. The surrogacy act doesn’t include the LGBTQ community and Live-in couples in the
surrogacy act to be a surrogate parents.
13
ARGUMENTS ADVANCED
1.WHETHER THE PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION

IS MAINTAINABLE ?
It is most humbly submitted before the honorable court that the exercise of jurisdiction
conferred under article 226 of the constitution is discretionary . This court is to be
exercised satisfying the demand of Justice. It is granted in the case where the petitioner has a
local standi to approach the honorable Court the petitioner should show that there is an
infringement of fundamental right the petition file before the court and such should not
be concerned with private interest but should be concentrated with public interest . It
humbly submitted that the case is not an exception and warrants no such writ petition to be
granted. Hence it is humbly submitted that the PIL is not tenable in the eyes of law as there is
not an iota of public interest in this case, rather
1.1. Only private interest is involved
1.1.1. Has no Locus Standi
1.2. No fundamental right has been repugnantly violated
1.3. Judiciary has no say in the legislative policy .
1.1. ONLY PRIVATE INTEREST IS INVOLVED

1. That lexically, the expression PIL means legal action initiated in the court of law for
enforcement of the public interest or general interest in which the public or class of community
have interest or some interest by which their legal rights or liabilities or affected 2. However this
case has become a procedure that is widely abused 3. It evolved to become publicity
interest litigation4 or private interest litigation 5 or politics interest litigation 6 or the latest
trend being passive income litigation7.
2. That if not properly regulated and abuse awarded it also becomes a tool in unscrupulous hands
to release vendetta and vengeance 8. There must be real and genuine public interest in
the
litigation and not merely an adventure of knight errantor poke one’s into for a probe9. Court of
2
Janata Dal Vs H.S.Choudhary, (1992), (4) SCC 305
3
Dattaraj Nathuji Thaware Vs State of Maharashtra (2005 ) 1 SCC 590
4
Bhandhua Mukti Morcha Vs Union Of India & Ors , 1984 SCR (2) 67
5
Nirmal Singh Kahlon Vs. State Of Punjab & Ors., (2009) 1 SCC 441
6
Common Cause vs Union Of India & Ors , Writ petition (civil) 580 of 2003.
7
Dr.B.Singh Vs Union Of India & Ors, (2004) 3 SCC 363
8
S.P. Gupta Vs Union Of India, AIR (1982) SC 149.
9
Kazhi Lhendhup Dorji V Central Bureau of Investigation (1994) SCR 201
14
Justice should not be allowed to be polluted by unscrupulous litigants by resorting to

extraordinary jurisdiction.
3. That public interest litigation is a weapon which has to be used with greater care and
circumspection and the judiciary has to be extremely careful to see that behind a beautiful way
of public interest and ugly Private malice vested or publicity seeking 10. It is to be used
as effective weapon in the armory of law for delivering social justice to the citizens .
4. That it is clear that it is the duty of the court to enforce fundamental right is also the duty of the
court to ensure that this weapon under article 226 should not be misused or permitted
to be misused creating a bottleneck in Superior Court preventive other genuine
violation of fundamental right being considered by the court11.
5. That the courts have also noted that on account of unwanted proceedings under frivolous Public
Interest Litigation a lot of time get wasted which code otherwise has been spent for disposal of
cases of genuine litigants12
6. In the present case the facts are silent about the cause of action as well as it is presumed that the
petitioners have filled the case for the enforcement of their private interest in the name of public
interest litigation.
1.1.1.HAS NO LOCUS STANDI.

1. It is humbly submitted: That the Supreme Court in Guruvayur Devaswom managing committee
Vs CK Rajan & Ors.13, has observed that any member of the public having sufficient interest
may maintain petition by way of public interest litigation provided that there is an injury to the
disadvantaged section of population from home access to the legal justice system is difficult14.
2. That in the case of BALCON Employees Union Case15 the court has again reminded that only
the ground in which a person can maintain a public interest litigation is where there has been an
element of violation of article 21 on Human Rights or where the litigation has been initiated for
benefit of poor and underprivileged are unable to come to the court due to some disadvantages
3. That the petitioner in the present case has to show sufficient interest in the present petition since
the petitioner one Mr Manoj is a person who has filed a public interest litigation and that the
Surrogacy act is in violation of the fundamental right to have a child. And the petition filed by
10
Kushum Lata Vs Union Of India Manu SCC 8225/ 2006
11
Chettriya Pardhoshan Mukti Vs State Of Utthar Pradesh (1990) SCC 2000
12
ibid
13
Guruvayur Devaswom managing committee Vs CK Rajan & Ors.AIR 2004 SC 561 : BP Banerjee , Writ Remedies ( 4
th edition rep. 2008)
14
BALCO Employee Union ( Regd) Vs Union Of India & Ors., AIR 2002 SC 350
15
BALCO Employee Union ( Regd) Vs Union Of India & Ors., AIR 2002 SC 350
15
the LGBTQ couple representing their community does not necessarily have a genuine interest in
this matter
1.2. NO FUNDAMENTAL RIGHT HAS BEEN REPUGNANTLY VIOLATED
1. It is contended : That article 14 of the Constitution is not violated as the classification
is founded on an intelligible differential. Article 14 forbids class legislation, it does not
forbid reasonable classification of the persons by the legislature for specific ends 16. The
Supreme Court in its recent judgement in the matter of Suresh Kumar Kousalya and others
versus Naz foundation and others that indulge in carnal intercourse in ordinary course
and those who indulge in the car and scores against the order of nature constitute different
classes.
2. That article 15 of the Constitution of India is not violative as it is not this appropriate
and discriminatory in its impact and there is compelling state interest involved. The Supreme
Court laid down in Govind versus State of MP17 that privacy claims deserve to be examined
with care and to be Denied only when an important countervailing interest is shown to be
superior or where interest is shown.
3. That there is no violation of article 19 and provide a reasonable ground under article 19 clause 2
imposes reasonable restriction on one’s freedom of speech and expression order of nature has
18
been defined . The Supreme Court observed in Jagmohan Singh versus State of UP19 that
your acceptance of way of life in another nation cannot be the basis for change in our
perception. Thus in contacts of India nonperformance of same-sex marriage is crucial to
maintain public decency and morality.
4. That article 21 of the Constitution is not a violated as it qualifies the test of substantive
due process as it does not violate one’s right to privacy and it is in the interest of public health
the requirement of substantive due process has been read into the Constitution of India through a
20
combined reading of article 14, 21, 19 . The due process requirement was laid down by the
Supreme Court in the celebrated case of Maneka Gandhi V Union of India 21 which states that
apart from the prescription of some kind of procedure for curtailment of one’s right the
procedure must be just and reasonable scope of the right of privacy also as also the permissible
limit upon its excise have been laid down in the case of Karak Singh Vs State of UP 22
and others which had a Constitution does not in terms confer any constitutional guarantee that
is
right to privacy is not absolute.
16
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.
17 Govind v. State of M.P., AIR 1975 SC 1378.
18 De Armond v. State, Okl. Cr., 285 P.2d 236
19 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20
20 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1
21 Maneka Gandhi v. Union of India, AIR (1978) 597.
22
Kharak Singh v. State of UP and others, (1964) 1 SCR 332.
16
5. In this case the object of the law is to protect surrogate mother and the classification based on
age is a reasonable classification permitted under art 14 and 15 of the constitution. More over
the legislature is free to formulate special provisions
6. Here the right to life and personal liberty under article 21 of the constitution is not
violated rather it protects the right to life and liberty of the willing mothers. The act
also does not infringe on persons right to privacy as the provisions of such proofs of the donor
like aadhar is essentially to be know.
1.3. JUDICIARY HAS NO SAY IN THE POLICY FORMULATION BY LEGISLATIVE

1. It is humbly submitted that the court cannot interfere in matters of legislative policy. The court
must maintain judicial restraint in matters relating to legislative or executive domain 23.
The policy of law may be gathered from the preamble, raise in the light of circumstances in
which it was passed, or its object, with its provisions read together.
2. That in the case of State (government of NCT of Delhi) Vs. Prem Raj 24, the court held
that where is the words are clear, there is no obscurity, there is no ambiguity and the intention of
the legislature is clear and it is conveyed in the same manner there is no scope for the
court to innovate or to take away self amending or altering the statutory provisions. In that
situation the judges should not proclaim that they can play the role of lawmaker really
for exhibition of judiciary Valour. They have to remember that there is a line which separates
adjudication from legislation. That line should not be crossed or erased.
3. That, it was held in Supreme Court Employees Welfare Association v. Union of India 25 that
the court cannot direct the legislature and delegated authority to make any particular law.
4. That it is well-settled that judicial review, in order to enforce a fundamental right, is permissible
of administrate, legislative and governmental action or non-action, and that the rights of
the citizens of this country are to be judged by the judiciary and judicial forums and not
by the administrators or executives. But it is equally true that citizens of India are not to be
governed by the Judges or judiciary. If the governance is illegal or violative of rights and
obligations, other questions may arise out whether, as mentioned hereinbefore, it has to be a
policy decision by the Government.
5. That in this case the legislature has made the legislation with the intend to protect and regulate
the practice of surrogacy. Here the judiciary has no say in the policy that has been frame as the
Surrogacy Act. Hence the court should not be and hope would not be an appropriate forum for
decision
23
Government of Andhra Pradesh Vs Smt.Laxmi Devi (2008) 8JT 639
24
State (government of NCT of Delhi) Vs. Prem Raj (2003) SCC 121
25
Supreme Court Employees Welfare Association v. Union of India (1989) 4 SCC
17
2. WHETHER THE IMPUGNED ACT IS CONSTITUTIONALLY VALID ?
It is humbly submitted that the impugned act is constitutionally valid as : It didn't violate the right to
equality and It doesn't affect the Right to Life and Personal Liberty.
2.1. THE ACT DOESNT VIOLATE THE RIGHT TO EQUALITY:
2.1.1.IN THE AMBIT OF ARTICLE 14 OF THE CONSTITUTION:
1. It is humbly submitted that the Impugned act does not violate Right to equality under article 14
and 15 of the Constitution. Constitution of India guarantees the fundamental right to equality
under article 14. Article 14 of the Constitution of India runs as follows, “The State shall not
deny to any person equality before the law or the equal protection of laws within the territory
of India.” The right to equality is a basic feature of the Constitution 26. Article 14 provides two
principles: Equality before the law and equal protection of the law. It has incorporated
the concept of equality before law from the English law and the equal protection of the law
2. That equality before the law is a concept from English law which is also known as Rule of Law
propounded by Prof. Dicey. It is a negative concept which states that the law should be equal
and should be equally administered and that the like should be treated alike 27. It ensures that all
people are treated equally in ordinary law and this means that no person, whatever his rank or
condition be, is above the law. It implies the absence of any privilege in favour of any
individual and equal subjection of all the classes of ordinary law. There is no absolute equality
in this concept and there are some exceptions for the same such as foreign diplomats
are immune from the jurisdiction of courts, Presidents, and other Governors of the State.
3. That society has a different class of people and nature also differs in every society. Hence, the
varying needs of the classes of people require different treatments. Therefore, many laws must
be applied based on reasonable classification to maintain equality without any discrimination. It
is seen that under Article 14 classification is based on reasonable classification and
prohibits class legislation. Under this concept, the principle of equality means that the same law
will not apply to everyone but it should apply to a class of people.
4. That a legislature is entitled to make a reasonable classification for purpose of legislation and
treat all in one class on an equal footing. There should be equality of treatment under
equal circumstances. This test was used by the Supreme Court from the very beginning to
test the
constitutionality of legislation and State actions impugned based on violating Article 14.
26
M.G Badappanavar v. State of Karnataka, AIR 2001 SC 260
27
Venkataramaiya’s Law Lexicon Volume 1- Human Rights
18
5. That there are two tests of classification which was stated in State of West Bengal v. Anwar Ali
Sarkar 28 To pass the test of permissible classification two conditions must be fulfilled:
 The classification must be founded on an intelligible differentia which
distinguishes those that are grouped from others are left out of the group
 The differentia must have a rational relation to the object sought to be achieved by the
Act.
6. That the differentia which is of the basis of classification and the object of the Act are distinct
and what is necessary is that there must be nexus between them 29. The test must be reasonable.
There must be nexus between the basis of classification and the object of the Act. These classic
tests of permissible classification were remarked as “they now sound platitudinous” in 1960.
7. That article 14 does not mean that all laws must be general in character or that the same laws
should apply to all persons or that every law must have universal application. This is because
all persons are not, by nature, attainment or circumstances in the same positions. The State can
treat different persons indifferently if circumstances justify such treatment. Further, the
identical treatment in unequal circumstances would amount to inequality.
8. That, there is a necessity of the “reasonable classification” for society to progress. The Supreme
Court has maintained that Article 14 permits the reasonable classification of persons, objects,
transactions by the State for the purpose of achieving specific ends that help in the development
of the society.
2.1.1.A. IN THE PERSPECTIVE FOR PROTECTION OF SURROGATE MOTHER
1. It is submitted : That the surrogacy is a service done to the human kind and to the biologically
disadvantaged couples or persons [impotent/ incapable to bear child]. As surrogacy is an act
against the nature and there can be charity and service only after fulfilling one’s self need
and essentials, it is appropriate to have a child for oneself and for her family and then give
birth to child for the needed person.
2. That the existence of an own child forms a factor of intelligible differentia. One own family
development & proliferation is the first priority than the development of other’s family. And
this intellible differentia also satisfies the rational nexus between the discrimination and
the object to achieved (object is to save the rights and interest of surrogate mother and her
family when doing surrogacy) [section 6(2)]. This same reason applies for why a unmarried
women
cant service as a surrogate mother.
28
In Re Special Courts Bill, (1979) 1 SCC 380, 423.
29
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
19
3. That here the law tries to first safeguard the interest and well being of the surrogate mother and
her family, by ensuring that she has a child of her own and then provide her service for
the purpose of surrogacy.
2.1.1. B. REASON FOR CLASSIFCATION BASED ON AGE :
1. WHO suggest the reproductive age of women is between 14 to 49 years. The mean is
31 years. The success rate of pregnancy during different age is as follows – at 25 years : 20 %
at
30 years : 12 % at 35 years : 7 % at 40 years. So the efficiency and the strength of pregnancy
or bearing a child peaks at 25 years and then it is inversely proportional to the increase in age
of the women. Also the mean reproductive age is 31 years.
2. Combining these 2 facts, one can find the statistical and scientific reason as to why
only woman between 25 to 35 can be a surrogate mother. Fertility gradually begins to decline
at around age 32. After age 35, that decline speeds up30.
2.1.2. IN THE AMBIT OF ARTICLE 15 OF THE CONSTITUTION.

1. It is humbly submitted that Article 15 Clause (3), (4) and (5) itself stands as an
exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4)and (5) states that the
legislature is free to formulate special provisions:
 For women and children,
 For the advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes and Scheduled Tribes,
2. That being the exception to the legislation that forbids discrimination on grounds of sex and
caste, this does not come under discrimination. Rather, the term ‘Protective
Discrimination’ (also known as Positive Discrimination) is used by the legislators to justify
reservation and is defined as the policy of providing an equal platform to the underprivileged
and the suppressed classes and to lift their status in the society. This system of reservation
works on the principles of intelligible differentia (difference capable of being understood).
3. That in a landmark case the petitioner was convicted under Section 342 and 354 of the Indian
Penal Code. The petitioner claimed that as there are no provisions relating to assault against
men with the intention to outrage his modesty, hence providing such laws for women
is discriminatory. Section 354 is contrary to Article 15(1). The petition was dismissed stating
the
law to be in consonance with Article 15(3)31
30
https://www.healthline.com/health/pregnancy/best-age-to-get-pregnant
31
Girdhar v. State, AIR 1953 MB 147
20
4. That in the given case the objective of the act in banning commercial surrogacy has been to
prevent exploitation of women. Established as a criteria for surrogate and intended parents, the
circumstances under which is allowed, and a regulatory framework for governance. The above
mentioned will fall under the reasonable discrimination or classification for the welfare of the
women. Especially sec 35 , 37 , 38 , 39 of the act.
2.2. THE ACT DOES NOT VIOLATE RIGHT TO LIFE AND PERSONAL
LIBERTY ENSHRINED UNDER ARTICLE 21.
It is humbly submitted that the Surrogacy (Regulation) Act, 2021 is constitutionally valid and
it does not violate Article 21 of the Constitution as Right to Life and liberty and Right to
Privacy haven't been violated and also it does protect surrogate mother's Right to health.
2.2.1.PROTECTS THE RIGHT TO LIFE AND LIBERTY OF THE WILLING MOTHERS

It is humbly submitted that the impugned Act does not violate Right to Life and liberty. It
is submitted
1. That the Right to life and Personal liberty of an individual, which not only ensures the right to
life, but also a quality of living. In the case of Munn v. Illinois32, the court cited Justice Field's
observation that when the term "life" is employed in this context, it is meant more than a mere
animal existence. As a result, it encompasses both the physical existence and the quality of life
itself. In Maneka Gandhi v. Union of India 33,the Supreme Court ruled that the right to
life guaranteed by Article 21 of the Indian Constitution encompasses not only the physical right
to life, but also the right to live in dignity. The same was decided in the case of Francis Coralie
vs. Union Territory of Delhi.34
2. That, the State has a responsibility to uphold citizen rights as part of its constitutional duty to
protect the interests of the larger public, as stated in Article 21 of the Constitution. 35 The events
such as unethical practices, exploitation of willing mothers, and importation of human embryos
and gametes are dangerous to public health. "Anything which tends to prevent dangers to public
health may also be regarded as securing public safety. The meaning of the expression
must,
however, vary according to the context."36
32
94 U.S. 113 (1876)
33
1978 AIR 597, 1978 SCR (2) 621
34
1981 AIR 746, 1981 SCR (2) 516
35
Consumer Education and Research Centre and Ors. v. Union of India and Ora, AIR 1995 SC 922,
36
Romesh Thappar vs The State Of Madras AIR 1950 SC 124 , 1950 SCR 594
21
3. That the contention made upon the Act that the right to personal liberty is infringed based on
sexuality and marital status is invalid. In the Modern dental college case37, it was
almost accepted that there are no absolute constitutional rights. Some constitutional experts
claim that there are certain rights, albeit very few, which can still be treated as “absolute”.
Examples given are:(a) Right to human dignity which is inviolable, (b) Right not to be
subjected to torture or to inhuman or degrading treatment or punishment. Hence such rights
of the willing mothers prevail and the Act is not violative of right to life and personal liberty.
2.2.2.DOES NOT INFRINGE ON A PERSON'S RIGHT TO PRIVACY

1. It is humbly submitted that the Article 21 guarantees right to life and personal liberty which
encompasses right to privacy but right to privacy is not absolute and is subject to restrictions.38
Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is
no protection of the rights themselves unless there is a measure of control and regulation of the
rights of each individual in the interests of all.”39
2. That the Supreme Court in case of Sharda v. Dharmpal40, rejected these contentions holding
that the right to privacy in India was not absolute. "If the respondent avoids such
medical examination on the ground that it violates his/her right to privacy or for a
matter right to personal liberty as enshrined under Article 21 of the Constitution of Indistan,
then it may in most of such cases become impossible to arrive at a conclusion." K.S.
41
Puttaswamy v. Union of India , the Justice Chandrachud, J. speaking for four Judges, laid
down the tests that would need to be satisfied under our Constitution for violations of
privacy to be justified.
3. That this included the test of proportionality. Regarding the infringement on privacy as
defined by Article 21, the law must be lawful. The three conditions of (I) legality,
which presupposes the existence of law; (ii) need, defined in terms of a legitimate State goal;
and (iii) proportionality, which ensures a rational nexus between the objects and the means
adopted to achieve them, must all be met for an invasion of life or personal liberty. The current
Act would pass the test. In a high profile case, Shri Rohit Shekhar vs Shri Narayan Dutt
Tiwari42 it appears that it is the ‘best interests of the child’ that undergirds the right to privacy
of either
parent.
37
Modern Dental College & Research Centre v. State of M.P (2009) 7 SCC 751
38
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
39
Modern Dental College & Research Centre v. State of M.P (2009) 7 SCC 751
40
AIR 2003 SC 3450, 2003
41
[K.S. Puttaswamy v. Union of India,(2017) 10 SCC 1]
42
Rohit Shekhar vs Narayan Dutt Tiwari & Anr on 27 April, 2012
22
4. That when the two are in conflict it is the former that will, the case law suggests, invariably
prevail. In Mr. X vs Hospital, 43 a man sued a hospital for disclosing his HIV status to
his fiancé without his knowledge, which led to the cancellation of their wedding. The hospital
was found not to have violated anyone's privacy because the information was disclosed
to safeguard the public interest, according to the Supreme Court. Although the court upheld the
obligation of patients to maintain their privacy, it also stated that this obligation was "subject to
such action as may be lawfully taken for the prevention of crime or disorder or protection of
health or morals or protection of rights and freedom of others.” Hence, the right to privacy is
not absolute and can be invoked to safeguard the public interest.
2.2.3. PROTECTS THE RIGHT TO HEALTH OF THE WILLING MOTHERS

1. It us humbly submitted that the Article 21 guarantees life and personal liberty and there are
many rights which are comprehended under Article 21, one of which is one’s ‘Right
to health'.44 The term “health” encompasses within its ambit women’s right to
reproductive health. In the case of Roe v. Wade,45 the U.S. Supreme Court held the protection
of health of the women to be ‘a compelling interest to the State’.
2. That the essential element is social support and care for the mother and the kid. Therefore,
any decision that is made with both her and her unborn child's best interests in mind must be
founded on a comprehensive evaluation of physical, psychological, and social
aspects.The
`Best interests' test requires the Court to ascertain the course of action which would serve the
best interests of the person in question.
3. That in the present setting this means that the Court must undertake a careful inquiry of the
medical opinion on the feasibility of the pregnancy as well as social circumstances faced by
the victim. It is important to note that the Court's decision should be guided by the interests of
the victim alone and not those of other stakeholders such as guardians or society in general.46
4. That the Act bans commercial surrogacy and lays down specifications such as age barrier of
surrogate mother, limitation on number of children she may bear, requirement of
genetic relation to surrogate parents, among others. It is contended that these
provisions are important to maintain the health of surrogate mothers and babies. Thus, The
Surrogacy Act
protects their Right to Health u/a 21 of the Constitution.
43
(1996) 8 SCC 296.
44
Kesavananda Bharati v. State of Kerala ,(1973) 4 SCC 225
45
Roe v. Wade, 410 U.S. 113 (1973).
46
Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009
23
RELEVANCY TO THE CASE
1. It is of no doubt that all person, including women have the right to reproduce, right to bodily
integrity and bodily autonomy u/a 21. No fundamental right under the Constitution is
Absolute. There can be reasonable restrictions that can be laid on the Fundamental Rights,
and that is what is mentioned in the Surrogacy Act for a woman to be a surrogate mother.
2. The only requisite is that, the law imposing the restriction that deprives the personal liberty
must be fair, reasonable and non arbitrary [as held in Maneka Gandhi case]. Such restriction
has satisfied the test of art 14 and art 19.
3. That the conditions like, she should be married , have her own child , surrogate between 25
to 30 years, only once in her lifetime she can act as surrogate mother satisfy the conditions
under article 14 and also doesn’t not violate any fundamental freedoms under art 19,
so section 4 (iii) (b) (I) is a fair and reasonable procedure established by law [in
accordance
with art 21]
24
3. WHETHER THE BAN ON COMMERCIAL SURROGACY AND THE REPLACEMENT

OF ALTRUISTIC SURROGACY IS VALID ?
It is humbly submitted before the Hon’ble High court of Alpha that, The ban on the commercial
surrogacy is valid , where the act was implemented with the intention of protecting the rights of
surrogate mothers and to ban the commercial surrogacy in Indistan.
3.1. THE ACT INTENDS TO PROTECT THE RIGHTS OF SURROGATE MOTHERS
1. That, Due to the situation, where Indistan has emerged as a place where it attracted people
from the Foreign nationals to avail infertility treatment, with its cutting edge technology and
affordable prices. Due to the unprivileged socioeconomic inequities, underprivileged women
are soon discovered a way to rent their wombs and thus earn money. However this made the
sphere for the availability of such wombs, and the demand increased.
2. That, unscrupulous middlemen infiltrated the scene and the exploitation of surrogate mothers
and the child began. In 2008, a Japanese couple began the process of surrogacy with
a surrogate mother in Gujarat, but during the period of surrogate pregnancy the couple
got divorced and both refused to take custody of the child47.
3. That, the surrogate mothers are cheated during commercial pregnancy, where the
infertility centers misuse the women’s womb and utilize them and fail to throw the light of
payment for the service rendered by the surrogate mother 48. Whereas in altruistic surrogacy,
the surrogacy is done to the women who is close and familiar to the couple as well as
to the surrogate mother so the rights and safety of the surrogate mothers is protected from
being exploited.
4. That article-46 of the constitution provided that the State shall promote and protect
with special care the educational and economic interests of the weaker sections of the people,
and, in particular, of the Scheduled Castes and the Scheduled Tribes, them from social
injustice and all forms of exploitation. Article 39(e) of the constitution directs the State to
ensure that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength. Article 39(f) of the constitution directs the State to ensure that
children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and
against moral and material abandonment. Article 42 of the constitution provides that the State
47
Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008
48
Kiran Infertility Centre Pvt ... vs Ito, Ward-2(1),Hyd, Hyderabad on 8 April, 2021
25
49
shall make provision for securing just and humane conditions of work and maternity relief .
Whereas it’s the states duty to protect the rights of the surrogate mothers from being exploited
by the commercial surrogacy.
5. Therefore the act intends to prevent unethical practices in surrogacy, exploitation of surrogate
mothers, abandonment of children born out of surrogacy, and import of human embryos and
gametes. The rights of children born through surrogacy are ensured in that they have the same
rights and privileges as a natural child. Most importantly, the act aims to come down heavily
upon middlemen and racketeers who exploit surrogates for their own devious profits.
3.2. THE BAN ON COMMERCIAL SURROGACY IS SAID TO BE VALID
1. Sec.4(ii)(b) of the Surrogacy (Regulation) Act, 2021, prohibits all forms of commercial
surrogacy and allows only altruistic surrogacy. Commercial surrogacy is sometimes referred
to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced
pregnancies" or "baby farms"50.
2. Article-23 of the constitution prohibits trafficking in human beings and forced labor.
The
practice of commercial surrogacy would amount to bonded labor, where the woman will be
forced by the economic conditions or the shadow markets she might be pushed into a situation
where the woman accepts for money and becomes a surrogate mother, which
eventually causes damage to everyone who is involved in surrogacy51.
3. The commercial surrogacy can lead to unsafe conditions for the fetus, Leads to coercion,etc .
If commercial surrogacy is allowed , surrogacy will become a business , and the
below poverty line women will be exploited52.
4. The commercial surrogacy will reflect as a slavery where the high economic racial family will
take the possession of the surrogate mother’s body who lies below the poverty line,
with money. Thus the surrogate women who agrees only for the money will be like a slave of
the couple’s who opt for surrogacy. Whereas, commercial surrogacy can create
discomfort between the couple and the surrogate mother.
5. During commercial surrogacy the surrogate mother is kept unknown so it leads to unsafe and
unethical ways of getting the child. Whereas in altruistic surrogacy who is willing and with
bonafide intention of holding the fetus is being the surrogate mother, where the
surrogate
mother does not accept for money. And in altruistic surrogacy the surrogate mother is well
49
R.D. Upadhyay vs State Of A.P. & Ors on 13 April, 2006
50
Sushma Devi vs State Of Himachal Pradesh And ors on 4 March, 2021
51
Shiva Ent Ydyog Thru. Pro. Satish and ors vs National Human Rights Commission and ors on 21 January, 2011
52
Albert Einstien Society of Human Gametes, Hyderabad. vs. Director of Income-tax 26 August, 2015
26
known to the persons who opt for surrogacy, the surrogacy is done only when the surrogate
mother accepts and willing to enter into the surrogacy process, so the act does create
any immoral or unethical to surrogate within the relatives.
6. It is also said that, Instead of exploiting the below poverty line women by commercial
surrogacy , altruistic surrogacy will lead to protect the unprivileged women in the society and
also provides ethical values for the family and child. The laws protects the rights of
all persons, it doesn’t stand on any discriminating basis, where the rich people takes
advantage over the poor women and exploits the body of another women. It cannot be claimed
that it’s the right of the person to avail reproductive autonomy on another person. The law
gives the right to the person to avail reproductive autonomy on their marital status and their
limits. And surrogacy is technology which helps the infertility person to avail for the ARTs.
7. Therefore it cannot be claimed that the act based on the discriminatory basis, the commercial
surrogacy is banned, only altruistic surrogacy is allowed53 where the willing women who have
bona fide consent54/intention with the person who opt for surrogacy.
53
Narsimhudu, Mahabubnagar Dist 17 ... vs Prl. Secretary, Gad, Hyd Another on 12 October, 2018
54
Uday Vs State of Karnataka (4 SCC 46), 2003.
27
4. WHETHER THE SURROGACY ACT IS INCONSISTENT AND DISCRIMINATORY?
It is humbly submitted before the hon’ble High court of Alpha is that, the surrogacy act is
not inconsistent and discriminatory, the surrogacy act or the ARTs act in the bona fide interest of
the citizens of the Indistan. It doesn’t aim to violate/infringe the basic rights of any person
or community. The acts are acting in the best interest of the surrogate mother, child and the
surrogate parents, so it cannot be claimed that the Government is ultra virus.
4.1. THE REASON BEHIND THE SILENT PROVISION ON THE SINGLE MEN
(UNMARRIED & DIVORCED & WIDOW) AND MALE & MALE COUPLES
FROM SURROGACY
1. According to section 11 of The Hindu Adoption and maintenance Act, 1956:

a. The age difference between adoptive father & to be adopted daughter should at least be
21 years55
b. The age difference between an adoptive mother and an adopted son should be at least 21
years56.
The legislative intent between such a long gap is that, either party I.e. the one who is adopting or
the one who is adopted, should not be prone to sexual assault from the other party.
2. That Sec. 6 of the Hindu Minority and Guardianship Act, 1956, deals with the natural guardian
of a person. For a boy and unmarried girl, the natural guardian is father and mother. It has also
been provided that the custody of minors under 5 years will ordinarily be with the mother.
3. That by combining these two provisions of the said enactments which are similarly placed with
that of the surrogacy Act, in terms of getting a child other than in a normal way, it can infered
that , single or divorced man are excluded from the surrogacy Act, because of the reason that,
immediately after the child is born, the nourishment and care of the mother (or to be mother) is
important more than anything to that child, and that factor is missing in case of divorced man or
single man or male male gay couple, the surrogacy act and ART act in the best interest of the
child’s health and it is requested to be taken as reasonable justification on the basis of
humanitarian concept.
55
Sec.11(iii) of The Hindu Adoption And Maintenance act,1956
56
Sec.11(iv) of The Hindu Adoption And Maintenance act,1956
28
4.2 THE COUPLE WITH THEIR OWN EXISTING CHILD CANNOT AVAIL
ANOTHER THROUGH SURROGACY.
Under sec.11(I) of the Hindu Adoption and Maintenance act, 1956 says that no person shall adopt
the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have
a Hindu son son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption)
living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made
must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by
adoption) living at the time of adoption; By considering the conditions for the adoption, under the
said act, the surrogacy act also takes these provision into consideration in such a way that it doesn’t
not to contradict the said act.
4.3. THE SURROGACY ACT DOESN’T INCLUDE THE LGBTQ COMMUNITY AND LIVE-
IN COUPLES IN THE SURROGACY ACT TO BE A SURROGATE PARENTS.
It is humbly submitted
1. That the judicial judgments can be taken as a precedent not as law , but as a source of law. It has
no binding on the parliament, the Act of Parliament supersedes the act of judiciary. So
judgment recognizing homosexuals, transgender and LGBTQ are not binding but will be
respectfully considered by the parliament in future endavours.
2. That these classes of person were recognized for the purposes of decriminalization57, for
marriage, for living in relation, for privacy issues 58, etc. The Purpose for which they
were recognized does not include the purpose of reproduction by adoption or surrogacy. Also
they are still to be recognized entirely and absolutely in the society. Till then it would be
appropriate to exclude them from the purview of surrogacy. If entirely recognized, appropriate
amendments will be done by the parliament.
3. That in the Indistan society the child is considered to be a soul of marriage and the
main purpose of marriage is to proliferate. The status and position of a live-in relation couple is
not evergreen and it is of temporary nature and prone to instability. So a child via surrogacy
can't be left at stake, by taking risk on the stability of a live-in relationship. Law hasn’t
recognized the live-in relationship, so there is very weak right to the parties of that
relationship and in turn
there will be poor remedy that can be enforced.
57
Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice AIR 2018 SC 4321; W.
P. (Crl.) No. 76 of 2016 D. No. 14961/2016
58
K.S. Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1), (Puttaswamy I).
29
4. Therefore, it highly recommended to consider that it’s not only the rights of the parties which
includes right to procreation, right to reproductive autonomy, right to family, etc these are the
subjects of Article 21 of the constitution where no fundamental right is absolute, each
fundamental rights has its reasonable justification and the excluded parties can’t rely on
it. Because it’s not just the rights of the parties , the rights of the child which will be born
through surrogacy and rights of the surrogate mother are also vested, where it is the states duty
to ensure the best of the public interest.
5. That those who have been excluded from the purview of the Surrogacy Act, the reason
and restriction are fair, reasonable and non arbitrary and abide by the provisions of Article -14
and Article -19 of the constitution. The restrictions placed are on the grounds of health,
morality,
public order, so they are not violative of any fundamental rights.
30
PRAYER
Wherefore it is humbly prayed, In the light of the issues raised, arguments advanced, and
authorities cited, that this Hon’ble Court may be pleased to
1. Quash the writ filed by the petitioners in this honorable court of law since there is
no violation of fundamental rights which eventually does not give raise to have locus standi.
2. Maintain the status quo of impugned acts since there is no violation of fundamental rights as
challenged by the petitioner as the legislation intends to regulate the surrogacy process.
3. Declare that the ban on commercial surrogacy as valid since the discrimination is justified
and reasonable.
And / Or Pass any other order which the court may deem fit in the light of justice equity and good
conscience all of which is most humbly prayed
Most humbly submitted by the

Counsels for the Respondents
31

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KRMUMCC - INTER UNIVERSITY NATIONAL MOOT COURT COMPETITION

TEAM CODE KRMUMCC03

K.R. MANGALAM UNIVERSITY

INTER-UNIVERSITY MOOT COURT COMPETITION

BEFORE THE HONOURABLE HIGH COURT OF APLHA

PUBLIC INTEREST LITIGATION

W.P.(CIVIL) NO. OF 2022

UNDER ARTICLE 226 OF CONSTITUTION OF INDISTAN

MR.MANOJ AND OTHERS ...................................... PETITIONERS

UNION OF INDISTAN & ANOTHER ................. RESPONDENTS

UPON SUBMISSION TO THE HON'BLE JUDGES OF THE HIGH

MEMORIAL ON BEHALF OF RESPONDENT

S.NO CONTENTS PAGE

Issue 2. Whether the impugned act is

Issue 3: Whether the ban on commercial surrogacy and the

Issue 4: Whether the surrogacy act is inconsistent and

6. SUMMARY OF ARGUMENTS 12-13

AIR All India Report

u/s under section

r/w read with

Cr.L.J. Criminal Law Journal

Surrogacy Act Surrogacy (Regulation) Act, 2021

1 Janata Dal Vs H.S.Choudhary, (1992), (4) Scc 305

2 Dattaraj Nathuji Thaware Vs State Of Maharashtra (2005 ) 1 Scc 590

6 Dr.B.Singh Vs Union Of India & Ors, (2004) 3 Scc 363

7 S.P. Gupta Vs Union Of India, Air (1982) Sc 149.

8 Kazhi Lhendhup Dorji V Central Bureau Of Investigation (1994) Scr 201

9 Kushum Lata Vs Union Of India Manu Scc 8225/ 2006

10 Chettriya Pardhoshan Mukti Vs State Of Utthar Pradesh (1990) Scc 2000

Guruvayur Devaswom Managing Committee Vs Ck Rajan & Ors.Air 2004 Sc 561 : Bp

15 Laxmi Khandsari V. State Of Uttar Pradesh, Air 1981 Sc 873.

16 Govind V. State Of M.P., Air 1975 Sc 1378.

17 De Armond V. State, Okl. Cr., 285 P.2d 236

18 Jagmohan Singh V. State Of U.P., (1973) 1 Scc 20

19 Suresh Kumar Koushal V. Naz Foundation, (2014) 1 Scc 1

20 Maneka Gandhi V. Union Of India, Air (1978) 597.

21 Kharak Singh V. State Of Up And Others, (1964) 1 Scr 332.

22 Government Of Andhra Pradesh Vs Smt.Laxmi Devi (2008) 8jt 639

24 Supreme Court Employees Welfare Association V. Union Of India (1989) 4 Scc

25 M.G Badappanavar V. State Of Karnataka, Air 2001 Sc 260

26 Venkataramaiya’s Law Lexicon Volume 1- Human Rights

27 In Re Special Courts Bill, (1979) 1 Scc 380, 423.

28 State Of West Bengal V. Anwar Ali Sarkar, Air 1952 Sc 75

30 Girdhar V. State, Air 1953 Mb 147

31 94 U.S. 113 (1876)

32 1978 Air 597, 1978 Scr (2) 621

33 1981 Air 746, 1981 Scr (2) 516

37 Govind V. State Of Madhya Pradesh, Air 1975 Sc 1378.

39 Air 2003 Sc 3450, 2003

40 [K.S. Puttaswamy V. Union Of India,(2017) 10 Scc 1]

41 Rohit Shekhar Vs Narayan Dutt Tiwari & Anr On 27 April, 2012

42 (1996) 8 Scc 296.

43 Kesavananda Bharati V. State Of Kerala ,(1973) 4 Scc 225

44 Roe V. Wade, 410 U.S. 113 (1973).

45 Suchita Srivastava & Anr Vs Chandigarh Administration On 28 August, 2009

46 Baby Manji Yamada Vs Union Of India & Anr On 29 September, 2008

48 R.D. Upadhyay Vs State Of A.P. & Ors On 13 April, 2006

49 Sushma Devi Vs State Of Himachal Pradesh And Ors On 4 March, 2021

Albert Einstien Society Of Human Gametes, Hyderabad. Vs. Director Of Income-Tax 26

Narsimhudu, Mahabubnagar Dist 17 ... Vs Prl. Secretary, Gad, Hyd Another On 12

53 Uday Vs State Of Karnataka (4 Scc 46), 2003.

54 Sec.11(Iii) Of The Hindu Adoption And Maintenance Act,1956

55 Sec.11(Iv) Of The Hindu Adoption And Maintenance Act,1956