The Bombay HC has granted two couples with donor eggs the right to pursue parenthood through surrogacy. The fundamental right guaranteed under Article 14 of the Constitution, which ensures equality before the law.
Mumbai: The Bombay HC has granted permission to two women to pursue surrogacy with donor gametes, a practice restricted by a 2023 amendment to the Surrogacy (Regulation) Rules of 2022. This decision, made by Justices GS Kulkarni and Firdosh Pooniwala, ensures individuals’ rights to parenthood through surrogacy without stringent adherence to the newly imposed regulations.
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Background
The court’s decision came in response to a petition challenging the Central Government’s notification dated March 14, 2023, which amended the surrogacy rules to limit the use of gametes exclusively to the intending couple, effectively barring the use of donor gametes. This amendment was contested for examining the Surrogacy (Regulation) Act of 2021 objective, which aims to facilitate surrogacy for couples and single women unable to bear children independently.
The petitioners argued that the amendment unjustly excluded infertile couples from the option of surrogacy by prohibiting donor gametes, highlighting that infertility, failed in vitro fertilization (IVF) attempts, or advanced age often necessitate surrogacy as a viable path to parenthood.
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While the Bombay High Court refrained from addressing the amendment’s validity, given an ongoing Supreme Court petition challenging the rules, it noted the Supreme Court’s interim order from October 18, 2023. The Supreme Court had previously stayed the March 14 notification for the petitioners, allowing them to proceed with surrogacy provided they met the other requirements.
That donor gametes – reproductive cells are not allowed for surrogacy in the interest of the child as there is a “possibility that the parents (couple) would not have strong emotional bond with the child”.
Union health ministry, represented by the advocate Y R Mishra, argued
The petitioner argued
“We find substance in the arguments of the learned counsel for the petitioner inasmuch as Rule 14 which is extracted above clearly refers to the wife as not being able to achieve parenthood owing to the “disability” on account of the absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for a woman to carry a pregnancy to term or would make the pregnancy life- threatening. The justification for necessitating gestational surrogacy in Rule 14 is all related to the intending woman or the wife and does not refer to the man/husband at all. The said provision is woman-centric and relates to the medical or congenital condition of a woman, which impedes her from becoming a mother.
Therefore, the whole scheme of the Act revolves around the “inability” of the woman to conceive and to give birth to a child and the medical indication necessitating gestational surrogacy in Rule 14 explains the various circumstances which incapacitate or disable women from having a normal pregnancy and having a child.
We have closely perused the original Paragraph 1 (d) in Form 2 and the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly indicates several procedures contemplated prior to the implantation of the embryo obtained through any of the procedures or possibilities into the uterus, after the necessary treatment if any of the surrogate mother. However, the substituted Paragraph 1(d) is in the nature of a mandate prohibiting or permitting the use of gametes of the intending couple or the single woman, as the case may be, and does not relate to fertilisation or other procedures contemplated therein. In other words, the fertilisation of a donor oocyte by the sperm of the husband is deleted. This in our view is contrary to what is contemplated under Rule 14(a) of the Surrogacy Rules. Moreover, the form as well as the substance of the amendment of Paragraph 1 (d) is not in tune with the form and substance of the pre- existing Paragraph 1 (a)-(f) of the Form 2. When Rule 14(a) specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy, the consent of the surrogate mother and the agreement for surrogacy in Form 2 appended to Rule 7 cannot mandate a condition contrary to Rule 14(a).
-the bench stated
In circumstances stated in Rule 14(a), for instance, the intending couple would necessarily have to have a surrogate child through a donor’s oocytes because, in such a condition, it is not possible for the woman to produce oocytes. Otherwise, Rule 14, which has to be read as part of Section 2(r), cannot be given effect at all, even having regard to the scheme of the Act, which permits surrogacy subject to certain conditions being complied with.
In this regard, it may be noted that the expression “genetically” related to the intending couple has to be read as being related to the husband when Rule 14(a) applies. Similarly, the expression “genetically” related to the intending woman would refer only to the intending woman who is an Indian woman who is a widow or divorcee which is in consonance with Paragraph d(ii) of the amendment, between the age of 35 to 45 years and intending to avail surrogacy. When an intending woman avails of surrogacy naturally, she would have to use her own oocytes or eggs and donor’s sperm. Conversely, when the woman in the intending couple is unable to produce oocytes or eggs, then donor oocytes or eggs have to be made use of.
The court recognized the unique medical circumstances of the petitioners, including one diagnosed with Von Hippel-Lindau syndrome, a genetic condition that risked being transmitted to their child. Surrogacy, advised by IVF experts, emerged as a solution to prevent passing on genetic defects.
Thus, even according to the Ministry of Health and Family Welfare of the Government of India, it is not mandatory for the surrogate mother to be related to the intending couple. It stands to reason as, if, the intending couple have a medical condition that becomes impossible for the woman to conceive for a child, opting for surrogacy by a gamete which is not of the woman naturally would not be genetically related to the intending couple. To a pointed query to the battery of counsels representing the Union of India lead by the Deputy Solicitor General as to the rationale behind the amendment, no convincing answer has come about, nor is in print in the statement of objections. Therefore, in the considered view of the Court, though this Court finds the amendment blatantly contrary to law, is not answering the challenge, as the challenge is pending before the Apex Court. Therefore, I deem it appropriate not to annihilate the same.”
Justices Kulkarni and Pooniwala emphasized reproductive health as an aspect of personal liberty protected under Article 21 of the Constitution of India. By partially allowing the petitions, the court granted the fundamental right to pursue parenthood through surrogacy, challenging the rules imposed by the 2023 amendment.
Case Title: 1.XYZ 2.ABC Vs. The Union of India | WRIT PETITION NO. 10108 OF 2023
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