Plea In Delhi High Court Challenges Notification Barring Use Of Donor Gametes In Surrogacy, Notice Issued

A petition has been moved in the Delhi High Court challenging a recent notification issued by Union Ministry of Health and Family Welfare which bars the use of donor gametes for an intending couple wanting to undergo surrogacy.

The notification issued on March 14 makes amendment to Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022. Form 2 is a consent form cum agreement of surrogacy to be executed by a surrogate mother.

The new amendment states that the “couple undergoing surrogacy must have both gamete from the intending couple” and that donor gametes is not allowed.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad issued notice on the plea and sought response of the Union of India and Delhi Government.

The plea has been moved by a married couple, who have been medically assessed to be infertile due to wife’s medical conditions, including the inability to produce viable oocytes (eggs). The couple was looking for a surrogate to carry the pregnancy, however, they are barred from availing surrogacy services as per the impugned notification.

The petition has been moved through Advocates Lalit Mohini Bhat, Saumya Tandon, Siddarth Agarwal, Anirudh Bhat and Arjun Basra. It has been settled by Senior Advocate Naveen R Nath.

It is the petitioners’ case that vide the impugned notification, infertile couples are discriminated only on the basis of whether they have the capacity for bearing gestational pregnancy.

“The amendment virtually renders the Assisted Reproductive Technology (Regulation) Act, 2021 otiose and is in conflict with the stated object of that Act. The said Act eschews the concept of genetic purity of the child born out of ART Process and surrogacy,” the plea states.

It further submits that the amendment has the potential of exposing bona fide infertile couples to criminal prosecution and make them vulnerable to the surrogates by virtue of sections 40, 41 and 42 of the Surrogacy Act.

“The amendment creates invidious discrimination between similarly situated persons without disclosing any intelligible criteria. The only basis for denying the Petitioners surrogacy services is their inability of one of them to produce gametes, which is otherwise a medically indicated basis for infertility among couples,” the plea reads.

In the alternative, the plea seeks a direction that the impugned notification is prospective in nature and does not apply to the intending couples who have obtained the Medical Indication Certificate under the Surrogacy Act prior to the said amendment.

Title: Dr. Ravi Kant Chauhan & Anr. v. Union of India