Kerala High Court Relies On Apex Court Verdict To Allow Surrogacy With Donor Eggs, Despite 2023 Surrogacy Regulations Amendment Disallowing It

The Court passed the order while hearing pleas challenging the recent amendment introduced by the Central Government in the Surrogacy Regulations Rules, 2022.

The new amendment passed in March 2023 amended Paragraph 1(d) of Form No. 2 under Rule 7 of the Surrogacy Regulations by which intending couples who want to undergo surrogacy can only use their gametes and not donor gametes. Before the amendment, the rule permitted the usage of donor oocytes for surrogacy.

Justice Devan Ramachandran, permitted the petitioners to undergo surrogacy by using doner eggs relying upon the recent Apex Court decision in Arun Muthuvel V. Union of India (2023) that stayed the operation of the amendment and permitted the petitioner women therein to use donor oocytes or eggs.

“I am persuaded to the afore view also because, in all the three cases, the wives involved either have no uterus or have their uterus removed or have ovarian failure, which makes it impossible for them to develop oozytes. The view of the Hon'ble Supreme Court, therefore, would certainly come to their aid, even if it is examined on a case-to-case basis”, the Court observed.

The Court passed the above considering the factual situations involved in the three writ petitions before it.

In the first writ petition, the petitioner was unable to produce oocytes and an embryo was already preserved even before the amendment came into effect on March 14, 2023. In the second writ petition, the petitioner who suffered from Myomectomy was unable to produce oocytes or gametes.

In the third writ petition before the Court, the petitioner who was suffering from Coronary Artery Disease, Systemic Lupus Erythematosus and Nephritis was also unable to produce eggs from her ovary.

Going by the Apex Court decision in Aruna Muthuvel (supra), the Court held the petitioners herein were also entitled to similar reliefs as they were unable to produce oocytes naturally due to various medical conditions. The Court thus permitted the petitioners to use donor oocytes or eggs and undergo gestational pregnancy through surrogacy.

The Court added that the petitioners shall undergo surrogacy abiding by the conditions and procedures mandated by the law.

Earlier, the Court had sought responses from the Central and State Governments to know the purpose behind the amendment.

Counsel for the petitioners: Advocates Adithya Rajeev, S.Parvathi, Safa Navas, S.Karthika, Anjana M Vadhyar, Preethy Karunakaran, Soni P., K.Meera

Case Numbers : WP(C)Nos.13652, 23970 & 37874 of 2023