Surrogacy | Notification Barring Use Of Donor Gametes Prima Facie Violates Married Infertile Couples' Right To Parenthood: Delhi High Court

The Delhi High Court has observed that the notification issued by the Union Ministry of Health and Family Welfare, barring use of donor gametes for an intending couple wanting to undergo surrogacy, prima facie violates the basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures and services.

“Further, the Impugned Notification does not disclose any rational justification, basis or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing Surrogacy services,” a division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula said.

The court made the observations while granting interim relief to two intending couples who moved court challenging the validity of the notification which was issued on March 14. The process for their surrogacy was halted after issuance of the notification which restrained surrogacy using donor eggs.

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.

Granting interim relief to the couples, the bench said that the Notification must be held to be prospective in its application and cannot be allowed to retroactively render their “legally fertilized embryo unviable.”

“Regardless of the fate of the Impugned Notification with regards to the challenge to its vires, it is essential to recognize that the Petitioners have secured a right to access surrogacy services which stood crystallised with the issuance of the Certificate of Medical Indication issued under Section 4(iii)(a)(I) of the Surrogacy Act,” the court said.

The bench also added that it essential to harmonize the two legislations i.e. the Surrogacy (Regulation) Act, 2021, and Assisted Reproductive Technology (Regulation) Act, 2021, in a manner that mitigates any potential conflicts between the law and established medical science.

“Such interpretation is guided by constitutional standards. Consequently, prima facie, the amendment to Form 2 is contradictory to the core principles of the two acts and their specific provisions,” the court said.

It added that the amendment effectively renders the Assisted Reproductive Technology (Regulation) Act, 2021, otiose and engenders a fundamental conflict with its stated objectives.

The court further said that a consent form executed by the surrogate mother cannot surreptitiously alter the rights to parenthood of an intending couple as granted under the Surrogacy Act to parenthood.

“Furthermore, the amendment has the effect of exposing couples who have commenced surrogacy procedures under the old regime to criminal prosecution by virtue of Section 43 of the Surrogacy Act, raising significant legal and ethical concerns,” the court said.

It added, “The Petitioners have a cryogenically preserved fertilized embryo earmarked for surrogacy use, predating the amendment. As such, the Petitioners possess a vested and constitutionally protected right to parenthood. The amendment cannot be allowed to retroactively render their legally fertilized embryo unviable.”

Noting that the embryo was generated prior to the issuance of the Impugned Notification, the court said that the couples possess a legally enforceable entitlement to surrogacy which aligns with their basic civil, human and right to reproductive autonomy and parenthood.

The court permitted the couples to resume the process for gestational surrogacy using their respective preserved embryos which were generated using donor oocytes fertilized by the husbands’ sperms prior to the issuance of the Impugned Notification.

“The Respondents are directed to facilitate the same in accordance with the previously existing regime, and it is made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother,” the court said.

Also Read - Insisting That Donor Egg Cannot Be Used For Gestational Surrogacy Is Prima Facie Against Surrogacy Rules: Supreme Court

Also Read: Individuals Already Undergoing ART Process Prima Facie Can’t Be Disqualified Due To Age Bar Under Surrogacy Act 2021: Delhi High Court

Also Read: Infertile Couples Excluded From Opting For Surrogacy: Plea In Bombay High Court Challenges Notification Barring Use Of Donor Gametes

Counsel for Petitioners: Mr. Naveen R. Nath, Senior Advocate with Ms. Saumya Tandon, Mr. Siddarth Agarwal, Mr. Anirudh Agarwal, Mr. Arjun Basra, Ms. Kavita Nailwal and Ms. Disha Gupta, Advocates.

Counsel for Respondents: Mr. Chetan Sharma, ASG with Mr. Apoorv Kurup, CGSC with Ms. Gauri Goburdhun, Mr. Akhil Hasija, Ms. Archana Surve, Ms. Avshreya Pratap Singh Rudy and Mr. Amit Gupta, Advocates for UOI. Mr. Santosh Kr. Tripathi, SC (Civil) GNCTD.