Family Law Case: Puspa Raj v. Nepal Government, N.K.P. 2074 B.S., Vol.59, D.N: 9757
Case: Writ Petition (Certiorari and Mandamus).
Petitioner: Puspa Raj Pandey
Respondents: Government of Nepal, Office of the Prime Minister and Council of Ministers & Others
Decision Number: 9757
This Case relating to Commercial Surrogacy, Women’s Rights, Reproductive Technology, and Regulation of Assisted Reproductive Technology.
Facts of the Case:
In 2071/06/02 B.S., the Government of Nepal (Council of Ministers) decided to allow Nepali hospitals to provide surrogacy services to foreign citizens, even though Nepal did not have any law regulating surrogacy. After this decision, some hospitals, including Grande City Clinic and Hospital, started offering surrogacy services.
Concerned about this, Advocate Puspa Raj Pandey filed a Public Interest Litigation (PIL) before the Supreme Court. He argued that the Government could not introduce surrogacy simply through a Cabinet decision without first passing a law through Parliament. He also claimed that commercial surrogacy could exploit poor women by treating motherhood as a business. Therefore, he asked the Supreme Court to cancel the Government’s decision, stop hospitals from providing surrogacy services, and direct the Government to enact a proper law regulating surrogacy.
In response, the Government stated that the National Health Policy, 2071 only proposed that surrogacy would be regulated by a future law and did not itself authorize hospitals to provide such services. It also argued that no hospital had been officially licensed because the necessary legal procedures had not yet been prepared. While the case was pending, the Supreme Court issued an interim order stopping the implementation of the Government’s decision. Later, on 2072/06/01, the Government cancelled its earlier decision. Even so, the Supreme Court continued to hear the case because it involved important issues of public interest and stressed that Nepal should enact a comprehensive law to regulate surrogacy.
Legal Issues:
- Whether the Government could legally authorize surrogacy through a Cabinet decision without a law enacted by Parliament.
- Whether commercial surrogacy is consistent with public policy, morality, and the protection of women’s rights.
- Whether Nepal requires a comprehensive law to regulate surrogacy services.
Decision of the Court:
Supreme Court of Nepal:
The Supreme Court held that the Government could not introduce surrogacy through a Cabinet decision without a law passed by Parliament. It observed that commercial surrogacy could exploit women and raise serious legal, ethical, and public health concerns. Although the Government had already cancelled its earlier decision, making the writ petition unnecessary, the Court directed the Government to enact a comprehensive law allowing only altruistic surrogacy under strict legal safeguards and prohibiting commercial surrogacy.
Principle Established:
This case established that surrogacy can be allowed only through a law passed by Parliament, not by a Cabinet decision. It also established that commercial surrogacy should not be permitted because it can exploit women and is against public policy and morality. If surrogacy is allowed in Nepal, it must be regulated by a clear law that protects the rights of the surrogate mother, the child, and the intended parents.
Relevancy of the Case:
This case is important because it is Nepal’s leading Family Law case on surrogacy. It clarified that commercial surrogacy cannot be allowed without a proper law and highlighted the need to protect women from exploitation and children from legal uncertainty. It also guided the Government to enact a comprehensive law for regulating surrogacy in Nepal.
