Supreme Court Allows Woman To Undergo Surrogacy With Donor Egg, Despite New Amendment Disallowing It

The Supreme Court on Wednesday (18.10.2023) allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a condition that prevents her from producing eggs, to undergo surrogacy using a donor egg. The Apex Court did so, by staying the operation of a recent amendment to the Surrogacy Rules, with respect to the petitioner. The amendment introduced in March 2023, prohibits the use of donor eggs for gestational surrogacy of an intending couple.

The new amendment introduced 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. Last week, the Court had 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 bench of Justice B V Nagarathna and Justice Ujjal Bhuyan has been considering 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,” the Court had observed in the previous hearing. 

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.

Accordingly, the medical report of one of the petitioners, was made available to the Court on Tuesday. Perusing, the said report, the Court was of the view that since, the petitioner is not able to produce oocytes (eggs), the only way for her to achieve parenthood would be to use a donor egg. The Court also observed that the said couple had commenced the procedure for achieving parenthood through surrogacy much before the amendment.

"..the petitioner herein, had commenced the procedure for achieving parenthood through surrogacy much prior to the amendment which has come into effect from 14.03.2023. Therefore, the amendment that is impeding the intending couple from achieving parenthood through surrogacy, we find is prima facie contrary to what is intended under the main provisions of the act.

In such circumstances the amendment ,i.e, Clause 1(d) of Form 2 read with Rule 7 of the Surrogacy Rules is stayed, in so far as the petitioner herein is concerned. It is needless to observe that if the petitioner herein, otherwise fulfils all other conditions mentioned under the act, she is entitled to achieve parenthood through surrogacy" the Court said its in order.

The Court made it clear that the amendment has been stayed only with respect to the petitioner and that the larger issue is still under consideration by the Court.  

Arguments Advanced

Sr. Adv. Sanjay Jain appeared for the Petitioner who was granted relief and Additional Solicitor General Aishwarya Bhati appeared for the Respondents.

ASG Bhati argued that there is no fundamental right to surrogacy. Surrogacy is heavily regulated, she informed the Court. The whole purpose is out of three things, the sperm, the egg and the womb, two must be of the intending couple, she said. 

"But here if the report says she has no uterus and she can't produce eggs, then how do you give meaning to Rule 14(a)? Here, the petitioner fulfils that. Having put this condition, you have to give effect to it. The doctrine of impossibility will arise" Justice Nagarathna said. 

Sr. Adv. Jain argued that the amendment must be read prospectively and must not have retrospective effect. The procedure for the petitioner commenced in February, before the amendment was introduced, he told the Court.  He also argued that the petitioner fulfils the requirement under Rule 14, which clearly says that if a woman is not able to achieve parenthood, owing to ‘disability’, on account of an absence of a uterus or repeated failed pregnancies, or an illness which makes it impossible for her to carry a pregnancy to viability, then she may opt for surrogacy. 

The intention of the legislature is clear that the child has to be genetically related to the intending couple, the ASG argued. She also read out the reasoning of the expert opinion relied on by the legislature on why donation of gametes should not be allowed for surrogacy. "The reason is to keep the interest of the unborn child, and to see that the parents are closely bonded to the child through surrogacy. If the child is not biologically related, there will be possibility that parents do not have a strong emotional bond with the child. The child may be rejected or uncared for by the parent who is not biologically related. The situation maybe harmful especially if the parent who donated the gamete does not survive or the couple separates. Also after growing up or while growing up, if the child develops some serious illness, sometimes genetic, the parent who is not biologically related may feel detached from the child and the child may not get proper care," she said.

"But then you see in the case of adoption, there is no genetic link at all. Here atleast, the lady will have the satisfaction that despite my drawback or disability or whatever,  my husband's contribution is there," Justice Nagarathna responded.  

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