Kerala High Court Seeks To Know Purpose Of Surrogacy Rules Amendment Barring Couples From Using Donor Oocytes

During the hearing today, Justice Devan Ramachandran sought response from the Central and State Governments to know the purpose behind the amendment. The Court admitted the matter and noted that it was a serious and important issue.

The writ petition was moved by a middle-aged couple who are unable to conceive naturally. As the petitioner wife was suffering from various illnesses and taking medications, she was medically advised not to plan a pregnancy or undergo fertility treatments. The petitioner thereafter opted for surrogacy, but she was informed that due to ovarian failure, she was unlikely to produce oocytes from her own ovaries for undergoing surrogacy. The plea stated the petitioner was otherwise medically eligible to undergo surrogacy.

The plea further stated that the Central Government introduced an amendment in March 2023 which amended Paragraph 1(d) of Form No. 2 under Rule 7 of the Surrogacy Regulations and it reads thus: “Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed”. Before the amendment, the provision allowed donor oocytes to be used for surrogacy. The earlier rule before the amendment read thus: “The fertilization of a donor oocyte by the sperm of the husband.”

The petitioner requires donor oocytes from another donor lady for undergoing surrogacy due to ovarian failure. However, the plea stated that the petitioner was unable to undergo surrogacy due to the recent amendments in the Surrogacy Regulations.

The petitioner's specific case is that they are unable to undergo surrogacy due to the new amendment and this is violative of their right to make reproductive choices as part of the fundamental right to life and liberty under Article 21 of the Constitution of India. The plea also stated that the amendment metes out differential treatment to infertile couples on the basis of their inability to produce oocytes which was discriminatory and violative of Article 14 of the Constitution.

Thus, the plea challenges the constitutional validity of the new amendment is violative of fundamental rights and ultra vires to the existing regulations. It also seeks direction from the Court to permit the petitioners to undergo surrogacy using donor oocytes.

The plea is moved by Advocates Adithya Rajeev, S.Parvathi and Safa Navas

The matter has been posted for counter pleadings of the respondents and is posted after three weeks.

It may be noted that recently, the Supreme Court passed an interim order allowing one woman to receive donor eggs, despite the amendment. The Supreme Court  observed that the barring donor eggs was prima facie against surrogacy rules. While hearing a similar plea, the Delhi High Court also observed that this amendment prima facie violated the rights of couples.

Case number: WP(C) 37874/ 2023