Karnataka High Court Allows Thirteen Intending Couples To Undergo Surrogacy Using Donor Gametes Despite New Amendment Disallowing It

The Karnataka High Court has allowed a batch of petitions and permitted thirteen couples to opt for surrogacy using donor gametes (a person who provides sperm or oocyte). The bench said the new amendment to the Surrogacy Rules which prohibits the use of donor eggs for gestational surrogacy of an intending couple can be diluted on a case to case basis.

Justice M Nagaprasanna however refrained from examining the validity of the amendment, stating that the issue is pending before the Supreme Court.

The petitioners had challenged the amendment dated 14.03.2023 made to Form 2 under Rule 7 of the Surrogacy Rules, which is the form for Consent of the Surrogate Mother and Agreement for Surrogacy.

The amendment substituted paragraph 1(d) in Form 2 to ensure that a couple undergoing surrogacy cannot have donor gametes and both the male and female gamete must come from the intending couple.

Court said the situation that has now emerged is- what the Act recognizes, Rule permits, a Form appended to the Rule "washes it away". Court said this restriction has to be diluted where the medical condition of the intending couple demands. It observed that Rule 14, which deals with Medical indications necessitating gestational surrogacy, "is not nebulous, it does contain all the conditions – medical conditions that would permit a woman to opt for gestational surrogacy. Therefore, the Act recognizes who is an intending couple to mean, any medical indication necessitating gestational surrogacy. Though medical condition is not defined under the Act, Rule 14 makes it clear qua the conditions that would inure to the benefit of a woman who wants to opt for surrogacy.”

Thus taking into account the medical condition of each of the petitioners in the batch of petitions, the bench said they are entitled to opt for gestational surrogacy and ordered, "the Authorities shall forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfil all other conditions.”

Significantly, the issue has come up before many High Courts. The Kerala High Court recently sought to know from the government the purpose behind the amendment. The Delhi High Court also observed that this amendment prima facie violated the rights of couples. A challenge to the amendment is also pending before the Bombay High Court. Meanwhile, the Supreme Court passed an interim order allowing one woman to receive donor eggs, despite the amendment. It observed that the barring donor eggs was prima facie against surrogacy rules. Hearing of this issue will continue before the Supreme Court today.

The Apex Court had in Devika Biswas v. Union of India (2016) held that right to reproductive health is a facet of personal liberty under Article 21 of the Constitution. Karnataka High Court said  though the judgment was rendered in a different circumstance, it would be appropriate to reword it to the case at hand and allow the petitions.

“In the considered view of the Court, this throws Rule 14 (supra) to the winds. An amendment to a Form, is trite, that it cannot run counter to the Act or the Rules. Rule 14 permits gestational surrogacy to be availed by a women who have medical conditions. Medical conditions are also defined under Rule 14...Rule 14 is framed in exercise of power conferred under Section 50 of the Act. Rule 14 permits an intending couple to opt for surrogacy on medical conditions. Medical conditions are also depicted under Rule 14. The Rule that permits surrogacy is taken away by the impugned notification which is an amendment to the consent Form of surrogacy. It is trite law that a Form cannot control the Act or the Rules and if permitted to remain, would be akin to permitting the tail to wag the dog,” High Court said.

As regards the pendency before the Supreme Court of a similar matter, the bench said “The Apex Court while permitting surrogacy to the petitioner therein stays Form 2 only insofar as the petitioner therein is concerned. While so permitting, the Apex Court has also observed that the fertilization of a donor oocyte by the sperm of the husband is deleted. This, in the view of the Apex Court, runs contrary to what is contemplated under Rule 14(a) of the Rules (supra), inter alia. The stay of the Notification granted was only insofar as the petitioner therein was concerned. Therefore, there can be no impediment to consider the cases of the petitioners on a case to case basis, strictly in consonance with the Act, Rules and the concept of gestational surrogacy.”

Accordingly the court allowed the petitions in part.

Appearance: Advocate Gautam S. Bharadwaj, for petitioners; Deputy Solicitor General H Shanti Bhushan, a/w CGC Irfana Nazeer, M.N. Kumar, for respondent No.1/Union of India; AGA Navya Shekhar, for R2/State.

Citation No: 2023 LiveLaw (Kar) 440

Case Title: XXX AND Union of India & Others

Case NO: WRIT PETITION No.15824 OF 2023 (GM-RES) C/W WRIT PETITION No.22462 OF 2023 (GM-RES) WRIT PETITION No.20476 OF 2023 (GM-RES) WRIT PETITION No.20492 OF 2023 (GM-RES) WRIT PETITION No.22468 OF 2023 (GM-RES) WRIT PETITION No.22470 OF 2023 (GM-RES) WRIT PETITION No.22511 OF 2023 (GM-RES) WRIT PETITION No.22515 OF 2023 (GM-RES) WRIT PETITION No.22530 OF 2023 (GM-RES) WRIT PETITION No.22533 OF 2023 (GM-RES) WRIT PETITION No.22536 OF 2023 (GM-RES) WRIT PETITION No.22624 OF 2023 (GM-RES) WRIT PETITION No.22631 OF 2023 (GM-RES

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