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

The Supreme Court has observed that insisting that only the egg and the sperm of an intending couple can be used for gestational surrogacy is prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

A new amendment introduced in March 2023 to Form 2 read with Rule 7 of the Surrogacy Rules specifies that donor eggs cannot be used for gestational surrogacy of an intending couple. 

The Court made this observation while hearing a batch of pleas filed by married women, suffering from a congenital disorder known as Mayer-Rokitansky-Kuster-Hauser (MRKH), who want to achieve biological motherhood through gestational surrogacy. MRKH syndrome causes absolute uterine factor infertility and the only way for a person suffering from such a condition to attain biological motherhood is through gestational surrogacy. This is because the petitioners are not able to produce eggs due to their medical condition.

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 recent 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. Prior to the substitution introduced in March 2023, paragraph 1(d) of Form 2 specified that methods of surrogacy treatment may include fertilisation of a donor egg by the sperm of the husband. However, this was changed to not allow donor gametes for couples choosing surrogacy.

The amendment also specifies that single women (widowed/divorced) must use self-eggs and donor sperms to avail the surrogacy procedure.

The petitioners challenged this contending that this was against Rule 14(a) of the Surrogacy Rules. According to Rule 14(a) a woman may opt for gestational surrogacy, if she has no uterus or an abnormal uterus.

“Having regard to the challenge made to paragraph 1(d) in Form 2 namely, the substitution as referred to above, we find, prima facie, that this is a case where the said substitution is contrary to what is stipulated in Rule 14(a) of the Surrogacy Rules,” a bench of Justice B V Nagarathna and Justice Ujjal Bhuyan said.

The Centre justified the substitution by arguing that the object of the Act is to prevent the exploitation of women through the practice of surrogacy.

The petitioners contended that they had commenced the procedure for achieving motherhood through surrogacy much before the amendment and that the amendment to Form 2 must be read prospectively and should not be made applicable to them. 

However, the Court was of the view that before deciding the matter, it must obtain appropriate medical opinion and thus directed the concerned District Medical Board to certify whether the petitioners were in a position to produce oocytes (eggs) or not, due to MRKH syndrome.

The Court directed the Medical Board to submit its report in a sealed cover to maintain the privacy of the petitioners.

The matter will be considered next on 17.10.2023.

Case Title  Arun Muthuvel V. Union of India, Writ Petition (Civil) No.756/2022 and connected cases.

Citation : 2023 LiveLaw (SC) 872

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