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I
TEAM CODE: NMCC 16
BEFORE THE SUPREME COURT OF UNION OF NILFGAARD
IN THE MATTER OF
HATTER CLINIC V. STATE OF ARIANA
(PETITIONER) (RESPONDENT)
CLUBBED WITH
MR. ATULYA & MS. ANNA V. STATE OF ARIANA
(PETITIONER) (RESPONDENT)
CLUBBED WITH
MR. RAJIV & MR. RHYTHEM V. STATE OF TARAKOTA
(PETITIONER) (RESPONDENT)
CLUBBED WITH
MR. SUHAS & MS. SUHASANI V. STATE OF KIMANU
(PETITIONER) (RESPONDENT)
UNDER ARTICLE 139(A)(1) OF THE CONSTITUTION OF UNION OF NILFGAARD
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT
II
TABLE OF CONTENT
INDEX OF AUTHORITIES.................................................................................................... III
STATEMENT OF JURISDICTION........................................................................................IV
IDENTIFICATION OF ISSUES .............................................................................................. V
STATEMENT OF FACTS ......................................................................................................VI
SUMMARY OF PLEADINGS................................................................................................IX
PLEADINGS ............................................................................................................................. 1
[I] SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS CONSTITUTIONAL ......... 1
[A]. The provisions of the ordinance do not derogate the principle of Art. 14 of the constitution .................................................................................................................................................... 1 [B]. The provision of the ordinance does not derogate from the principles of Art. 19(1)(g) of the Constitution .......................................................................................................................... 2 [C]. The provisions of the ordinance do not contradict the principles Art. 21 of the Constitution .................................................................................................................................................... 4 [II] NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE CONSTITUTION OF THE UNION OF NILFGAARD ........................................................... 7 [A] Same sex marriage (right to marry) is not secured under right to privacy .......................... 7 [B] Marriage is governed by personal laws of country.............................................................. 8 [C] Marriage is a socially recognised sacred union which considers only heterosexual union. 9 PRAYER .................................................................................................................................. 11
IV
STATEMENT OF JURISDICTION
The Respondent have been called to approach to this Hon’ble court under article 139(A)(1) of Constitution of Nilfgaard.
V
IDENTIFICATION OF ISSUES
[I] WHETHER SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS
UNCONSTITUTIONAL?
[II] WHETHER NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE
CONSTITUTION OF THE UNION OF NILFGAARD?
VII
PETITION FILED BY MR. ATULYA & MS. ANNA:
One married couple namely Mr. Atulya, and his wife Mrs. Anna were also hatter clinic’s clients. Ms. Anna's family was suffering from Leber hereditary optic neuropathy (LHON) syndrome. This couple decided to conceive a child through surrogacy. They approached the Hatter Clinic for a surrogacy arrangement. Ms. Kritya who is an unmarried, educated and independent women agreed to become a surrogate mother. This couple entered into a surrogacy contract wherein inter alia it was agreed that through artificial insemination using Mr. Atulya's sperm, Ms. Kritya will be impregnated. Under the contract she was bound to hand over the child to Mr. Atulya and Ms Anna. Pursuant to the traditional surrogacy contract, advance payment was made to Ms. Kritya. Afraid of the penal consequences under the ordinance, Ms. Kritya backed out of the traditional surrogacy contract. Being aggrieved by the provisions of the ordinance which banned commercial surrogacy, Mr. Atulya and Ms. Anna challenged the provisions of the ordinance before the High Court of Ariana. PETITION FILED BY MR. RAJIV & MR. RHYTHM: In the State of Tarakota, Mr. Rajiv and Mr. Rhythm being Nilfgaardian citizens, were gay couples belonging to Hindu religion. They met in 2015 and fell in love with each other. after a live-in relationship of three years, they decided to get married. Due to societal backlash, they had done secret ceremony in a temple to solemnize marriage. Subsequently, they were unable to register their marriage under the Hindu Marriage Act, 1955. Having failed to provide legal recognition to their marriage, Mr Rajiv and Mr Rhythm made an attempt to move on with their lives. They always dreamt of having a family and decided that by utilizing the surrogacy procedure they will relish the joy of parenthood. The ordinance being exclusionary allowed only a certain set of people to become surrogate parents. Section 4(c) (II) imposed restrictions on couples that they should be “married for at least 5 years and are Nilfgaardian citizen”. This provision has made it nearly impossible for Mr Rajiv and Mr Rhythm to become biological parents and being aggrieved by the ordinance they challenged the provisions of the ordinance before the High Court of Tarakota. WRIT PETITION FILED BY MR. SUHAS & MR. SUHASANI: In the State of Kimanu, a State in Union of Nilfgaard, Mr. Suhas and Mrs. Suhasani a married couple were unable to have children. Thereafter, in April 2019, Mr. Suhas and Mrs. Suhasani entered into a surrogacy contract with Mrs. Sagrika for a sum of Rs. 15,00, 000/-.Asper the
VIII
surrogacy contract, the gametes were provided by Mr. Suhas and Mrs. Suhasani, and Mrs. Sagrika agreed to bear and give birth to a child for Mr. Suhas and Mrs. Suhasani with the intention of handing over the child three weeks after the birth. Subsequently, after the birth of child on 21th January 2020, she changed her mind and decided to keep the child and forgo the money. Thereafter, Mr. Suhas and Mrs. Suhasani filed a petition for a Writ of Habeas Corpus seeking custody of the child before the High Court of Kimanu. Since the promulgation of the Ordinance, the aforesaid writ petitions were filed before different high court in the Union of Nilfgaard challenging the provision of the ordinance. As the cases involved substantial question of general importance, the supreme court of Nilfgaard on its own motion transferred the writ petitions pleadings before different high courts to itself. After completion of the pleadings the Supreme Court listed the writ petitions for final hearing on April 28, 2022.
PLEADINGS
[I] SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS CONSTITUTIONAL
- It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that the Surrogacy Arrangements Ordinance, 2019 is not unconstitutional because the provisions of the ordinance do not derogate with the principles of Art. 14 of the Constitution [A]. The provision of the ordinance does not derogate from the principles of Art. 19(1)(g) of the Constitution [B]. The provisions of the ordinance do not contradict the principles Art. 21 of the Constitution [C]. [A]. The provisions of the ordinance do not derogate the principle of Art. 14 of the constitution
- It is most humbly submitted before the Hon’ble Supreme court of Nilfgaard that by restricting the LGBTQ+ inhabitants, single men and women is not the violation of Art. 14 of the Constitution of the Union of Nilfgaard.
- Section 2 (g) of The Surrogacy Arrangements Ordinance, 2019 defines the term ‘couple’ means the legally married Indian man and woman above the age of 21 years and 18 years respectively”.^1 & Section 4(c) (II) of the ordinance, imposed restrictions on couples, requiring them to be “ married for at least five years and a Nilfgaardian citizen”^2_._
- Art. 14 of the Constitution of Nilfgaard states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of Nilfgaard''^3_._ The Doctrine of Reasonable Classification has been understood to mean that class legislation is prohibited when adopting a law.
- Surrogacy in general, and The Surrogacy Ordinance, 2019, in particular, is a unique synthesis of social, ethical, moral, legal, and scientific concerns, and it is necessary to reconcile the conflicting interests inherent in the surrogacy process in order to ensure not only the rights of the mother’s or women but also to protect the rights of child.
- In the present laws of the Union of Nilfgaard same-sex couples are not being given the legal sanction as a married couple under Hindu Marriage Act, 1955 & Special Marriage Act,
- If we solemnized LGBTQ+ community for the procedure of surrogacy then it will indirectly violate the fundamental rights of the child such as “right to health”^4 which is a part (^1) The Surrogacy Arrangements Ordinance, 2019, S. 2 (g). (^2) The Surrogacy Arrangements Ordinance, 2019, S. 4 C (II). (^3) INDIA CONST. art. 14. (^4) INDIA CONST. art. 21.
of Art. 21 of the Constitution of the Union of Nilfgaard; The W.H.O. created basic indicators to improve the monitoring of maternal and neonatal health care quality of the child. “The percentage of neonates who got all four parts of necessary care”^5 is one such measure for neonatal health. One of the four components is “early breastfeeding initiation”^6 & it is impossible from the side of homosexual couples. There may be many incidents & issues faced by children like; societal backlash, exploitation as they face.
- Therefore, by recognizing surrogacy for LGBTQ+ couples, we are denying the child's rights, and it would be more ethical for LGBTQ+ couples to adopt rather than pay a little sum to produce genetically related children. Additionally, there are ethical concerns with paying women for their eggs or paying women to bear their children as surrogates; this conduct is immoral, or at the very least self-indulgent, in seeking biological children rather than adopting orphans. There is no bar on single members of society adopting; one of the two partners in a same-sex relationship may adopt as a single parent. [B]. The provision of the ordinance does not derogate from the principles of Art. 19(1)(g) of the Constitution
- It is most humbly submitted before the Hon’ble Supreme court of Nilfgaard that by banning the commercial surrogacy, doesn't contradict the principle of Art. 19(1)(g) of the constitution of the Union of Nilfgaard.
- Art. 19(1)(g) of the constitution of the Union of Nilfgaard which ensures “freedom of trade and profession”,^7 here the act of surrogacy is seen as a profession. Surrogacy is seen as a technique of generating revenue. It might almost be classed as an industry. There is a potential that women may turn to this way to make a living. This becomes an issue when they begin contracting babies one after the other. It is detrimental to the surrogate mother's health.
- The human body has inherent limitations. Reproduction is a very energy-intensive procedure that demands a great deal of a woman. It's strenuous on both a physical and emotional level. Repeated childbearing increases a woman's susceptibility to miscarriage. The body needs time to recuperate, which women may overlook due to their financial obligations. This might result in problems during labour, which endanger not just the infant but also the mother. (^5) W.H.O. Guideline: Delayed umbilical cord clamping for improved maternal and infant health and nutrition outcomes, (2014). (^6) Id. (^7) Supra note 3.
widows, and divorced women to complete their families through surrogacy. To accomplish the aforementioned goal, the Ordinance prohibits commercial surrogacy and allows only altruistic surrogacy. [C]. The provisions of the ordinance do not contradict the principles Art. 21 of the Constitution
- It is most humbly submitted before the Hon’ble Supreme court of Nilfgaard that by banning the commercial surrogacy, doesn't contradict the principle of Art. 21 of the Constitution which ensures “the protection of life & liberty of the citizens”^9 of Nilfgaard, rather it is protecting the ambit of Art. 21.
- Section 5 of the Surrogacy Arrangements Ordinance, 2019 deals with the prohibition of conducting surrogacy; it is clearly stated that “No person including a relative or husband of a surrogate mother or intending couple shall seek or encourage to conduct any surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of section 4.”^10
- This ordinance is not formed in any air, it is due to numerous Surrogacy-related legal difficulties that have shown themselves in a number of court cases, the most notable of which being the Baby M^11 case in the United States of America, Jaycee B. vs. Superior Court^12 , Baby Manji Yamada vs. Union of India^13 , and the Israeli gay couple's lawsuit. The Baby Jaycee case^14 is a textbook illustration of the legal complications inherent in the surrogacy process. “Five parents — the genetic mother, the commissioning mother, the surrogate mother, the commissioning father, and the genetic father - sought custody of the kid.”^15
- The landmark decision of “Baby M,”^16 New Jersey, United States of America, 1987, in which the New Jersey supreme court defined commercial surrogacy as “a type of human trafficking”^17 or “sale of human beings,”^18 but failed to enforce commercial surrogacy agreements.
- Commercial surrogacy and international or transnational surrogacy are being forbidden in Nilfgaard to protect impoverished Indian women from being used as surrogate mothers for (^9) Supra note 4. (^10) The Surrogacy Arrangements Ordinance, 2019, S. 5. (^11) In re Baby M, 109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (N.J. Feb. 3, 1988). (^12) Jaycee B. v. Superior Court (John B.) (1996). (^13) Baby Manji Yamada vs. Union of India & Ors., A.I.R. 2009 S.C. 84. (^14) Jaycee B. v. Superior Court (John B.) (1996) (^15) Id. (^16) Supra note 11. (^17) Supra note 11. (^18) Id.
foreigners. In the absence of surrogacy laws, surrogacy has developed into a multimillion- dollar industry, a business-like operation performed for profit or to meet the commercial vested interests of physicians, clinics, and wealthy couples.
- These complex issues surrounding the surrogate child's status and genuine concerns about citizenship rights are likely among the primary reasons why the law commission, in its 228th report presented in 2009^19 , took on the subject suo-moto and recommended an outright ban on commercial surrogacy, with altruistic surrogacy remaining permitted.
- One of the primary reasons advanced by proponents of surrogacy is that the surrogate mother consents to ‘renting her womb' in order to give birth to another's kid. They claim that a woman may embrace this technique both altruistically and commercially. This raises the issue of whether permission is really voluntary in this instance.
- It is not wholly wrong to assert that surrogacy is a class-dominated practice in Nilfgaard based on the current state of the practice. Class-dominating means that the wealthy enlist the 'assistance' of poor women to carry their children for them. The primary motivation for impoverished women to agree to have a baby for someone they have never seen, met, or interacted with is money gain. She is lavished with money and gifts in exchange for carrying another woman's kid, enduring hormonal fluctuations, nurturing the baby for nine months, and then giving it up. She does this since the money will assist her in educating her children, paying off debts, and perhaps purchasing her own home.
- Can consent really be claimed to be free in this case? Who is to establish if the lady was coerced into this behaviour by her husband or relatives? Given that the money is intended for her own family, it is quite unlikely that such a surrogate would admit to the true motivations for her choice.
- The detrimental effect on the surrogate mothers' physical and psychological health, the physical health risks associated with surrogacy, as well as the mental or psychological health impacts, stress, as well as mental trauma influencing the surrogate mother's mind as a result of the underlying biological changes in the surrogate mother.
- Therefore, Commercial surrogacy is the commercialization of motherhood and the commodification of women's bodies, whereby women rent their gestational services or wombs to a third party or married couple for commercial gain or monetary compensation. Motherhood is transformed into a womb rental company, a kind of exploitation that involves the commercial (^19) 228th Report of Law Commission of India, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of Parties To A Surrogacy”, 2009.
[II] NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE
CONSTITUTION OF THE UNION OF NILFGAARD
- It is submitted before the Union of Nilfgaard that non-recognition of homosexual unions is not against the Constitution of the Union of Nilfgaard for the reason that Same sex marriage (right to marry) is not secured under right to privacy[A], Marriage is governed by personal laws of country[B], and Marriage is a socially recognised sacred union which considers only heterosexual union[C]. [A] Same sex marriage (right to marry) is not secured under right to privacy
- Fundamental right under Article 21^21 is subject to procedure established by law and the same cannot be expanded to include same sex marriage under the law of the country which mandates contrarily.
- Decriminalisation of Section 377^22 does not mean that it gave homosexual couple a right to marry. Navtej Singh Johar^23 only allows a homosexual couple to express their sexual desire without the fear of legal sanction on the conduct. The ruling is applied to personal private conduct of the community and does not mean to be applied over the institution of marriage. The court in the said case remain silent over the matter of marriage among the homosexual couple but allowed the couple to live a dignified private life and enjoy basic right of companionship as far as the companionship is consensual and free from any kind of force and coercion^24.
- Hindu marriage is a ceremony between not only a man and a woman but between two family, ceremony of such nature cannot be a part of one’s private sphere, it is absolutely a public affair in the society and cannot be a part of right to privacy. The people of Union of Nilfgaard follows deep cultural beliefs and complex social mores^25 , Hindu marriage is one such deep cultural belief which is celebrated by family and individuals with very sacred rituals and belief allowed by the ancient customs of the religion and practices and does not allow same sex union. In the impugned case same sex union if allowed will affect the deeply rooted customs and norms of society and bound to create imbalance in society. (^21) INDIA CONST. (^22) Indian Penal Code, 1890. (^23) Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. A.I.R. 2018 S.C. 4321. (^24) Id. (^25) Moot proposition, Para 1.
- Therefore, it is submitted that right to marry of a same sex couple is not secured under fundamental rights of the same sex couple and should be kept out of the ambit of the personal Hindu laws for the greater good of the society. [B] Marriage is governed by personal laws of country
- Marriages in the Union of Nilfgaard is regulated by personal laws^26 and there are different personal laws to govern marriages of different religion or community. State recognised those customs and codify those laws in order to give the marriage legal sanction. In the Union of Nilfgaard marriages for Hindus is governed under Hindu Marriage Act, 1955 or people can also choose Special Marriage Act, 1954 which is a secular law. Both of the legislations only recognise heterosexual marriage, inter sex people are not subject matter of it. Moreover, it was never the intention of legislators to govern same sex marriages under the above-mentioned legislation^27.
- Recognising same sex marriage goes against the tenets of Hindu Personal Laws in the Union of Nilfgaard and Hindu Personal Law cannot be judged on the basis of Fundamental Rights guaranteed under Part III of the Constitution oof the Union of Nilfgaard^28.
- Section 5 of the Hindu Marriage Act, 1955 mentions word spouse which means a husband or a wife and connotes to a person of opposite gender. Thus, people from same sex are not part of the definition and cannot register their marriage under the Act. The personal laws in the Union of Nilfgaard as it stands is very much settled and marriage is contemplated to be union of a biological man and a biological woman i.e., being cis-gendered is the essential to be governed under the Act, changes of this fundamental nature cannot be accepted as it would create serious problem in governance. Moreover, issue of including same sex marriage is of very substantive in nature which can create delicate havoc in the balance of personal laws, hence judicial intervention should be avoided and let the democratic government come with a solution.
- Issues such a marriage, adoption, maintenance, succession, etc., are either decided by codified law or the personal law, democratic government makes law on such matters using their wisdom and according to social acceptability. Thus, issues mentioned above is solely reserved to be dealt by the elected government of the country. (^26) Hindu Marriage Act, 1955. (^27) Hindu Marriage Act, 1955, Statement of object. (^28) State of Bombay vs. Narasu Appa Mali AIR 1952 BOM 84.
- The institution of marriage has certain sanctity attached to it in Hindu culture. It provides the most natural way to a man and woman to reproduce and make family, there are many related responsibilities are attached to the institution of marriage.
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested that this Hon’ble Supreme Court of the Union of Nilfgaard may be pleased to adjudge and declare that:
- Surrogacy Arrangements Ordinance is constitutional.
- Non-Recognition of homosexual unions is not against the constitution of the union of Nilfgaard. And pass any such order or direction as the Hon’ble Court deems fit and proper, for this the Respondent shall duly bound pray. ALL OF WHICH IS RESPECTFULLY SUBMITTED COUNSEL FOR THE RESPONDENT
