"Reproductive Health Is A Facet Of Personal Liberty": Bombay High Court Allows Two Couples To Use Prohibited Donor Gametes For Surrogacy

The Bombay High Court has allowed two women to undergo surrogacy using 'donor gametes' which is otherwise prohibited under an amendment in 2023 to Surrogacy (Regulation) Rules, 2022.

Justices GS Kulkarni and Firdosh Pooniwala passed the order.

“...we are of the clear opinion that if the protection as prayed for is not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023.”

The petition, filed through Advocate Tejesh Dande, challenged a Central Government notification dated March 14, 2023, amending Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.

As per the amendment, the procedure is restricted to the use of gametes of only the intending couple undergoing surrogacy, and no donor gamete is allowed. Further, a single woman undergoing surrogacy is allowed to use only self-eggs and donors forms.

According to the petition, this amendment defeats the purpose of the Surrogacy (Regulation) Act, 2021 which is an enabling statute for couples as well as single women who cannot bear a child on their own.

Clause 1(d) before the amendment mentioned that the procedure may include the fertilization of a donor oocyte by the sperm of the husband.

The women contended that the primary reason a couple opted for surrogacy was infertility by birth or otherwise, various failed attempts through IVF procedures or advanced age. However, the amendment completely excluded infertile couple from opting for surrogacy by disallowing donor gametes.

While the court did not deal with the question of striking down the amendment, as a petition challenging the amended rules is already pending before the Supreme Court (Writ Petition(Civil) No. 756 of 2022 (Arun Muthuvel Vs. Union of India), the court noted an interim order passed in the case.

On October 18, 2023 the SC observed in an interim order that prima facie the amendment which was enforced through the March 14, 2023 notification was contrary to the Surrogacy Act and accordingly stayed the notification qua the petitioners. The petitioners were allowed to undergo surrogacy if they fulfilled the remaining requirements.

It was pointed out that after the SC's order the Karnataka HC also partly allowed a clutch of petitions and allowed the petitioners to undergo surrogacy using donor gametes.

Assistant Government Pleader Chavan acknowledged the SC's position but said that a state board has been created to handle these transitional matters, so the petitioners should have gone to the board instead of the court.

The Ministry of Health and Family Welfare opposed the petition and supported the amendment. However, the court observed that would be contrary to the SC's interim order.

The bench noted that one of the two petitioners were diagnosed with Von Hippel-Lindau Syndrome (VHL), a rare genetic disorder. It caused loss of sight in one eye to the woman's kin. The doctor opined there were high chances of the disorder being passed on the foetus as well. Therefore IVF experts advised surrogacy to avoid passing on the genetic defects to a child via the wife's oocytes (eggs).

Even the second petitioner woman said she could not conceive due to various medical complications.

“In the above circumstances, in our opinion, it is imperative for the petitioners to proceed to achieve parenthood by surrogacy, however, in doing so, the petitioners cannot be foisted with the compliance of the impugned rules, namely, Rule 1(d)(I), as set out in the notification dated 14 March, 2023, the reasons we would discuss hereafter.”

It is well settled that the reproductive health is a facet of personal liberty under Article 21 of the Constitution of India, the court added and partially allowed the petitions.

Case Title - 1. XYZ 2. ABC Versus 1. The Union of India

Case Number - WRIT PETITION NO. 10108 OF 2023

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