The Kerala High Court has taken a significant step by admitting a plea that challenges the recent amendments to the Surrogacy (Regulation) Rules, 2022. These amendments, particularly concerning the use of donor gametes in surrogacy, have sparked a legal debate on reproductive rights.
Justice Devan Ramachandran of the Kerala High Court, acknowledging the gravity of the issue, has called for responses from the Central and State Governments. The court’s intervention comes in response to a petition filed by a couple facing severe fertility challenges. The wife, diagnosed with Systemic Lupus Erythematosus (SLE) and other health complications, suffered a heart attack in 2021. Due to her medical condition, she was advised against pregnancy. The couple’s situation was further complicated by the wife’s premature ovarian failure, necessitating the use of donor gametes for surrogacy.
However, the couple’s path to surrogacy hit a roadblock with the amendment to Paragraph 1(d)(I) of Form No. 2 under Rule 7 of the Surrogacy Regulations. The amended rule states,
“Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed.”
This change effectively prohibits the use of donor oocytes (ovary cells), directly impacting the couple’s ability to proceed with surrogacy.
In their plea, the petitioners argue that this amendment contradicts their fundamental rights under the Constitution of India. They assert that it violates their right to make reproductive choices, encompassed within the right to life and liberty under Article 21, and discriminates against them based on their inability to produce oocytes, thus breaching Article 14.
The petitioners further contend that the amendment is ultra vires to the existing regulations and challenges its constitutional validity. They seek the court’s intervention to permit them to undergo surrogacy using donor oocytes.
The case, WP(C) 37874/ 2023, has been scheduled for a hearing after three weeks, allowing time for counter pleadings from the respondents. The plea references similar cases where courts have interpreted the amendment more flexibly. The Supreme Court, in a recent judgment, permitted surrogacy with donor oocytes, provided other statutory conditions were met. Similarly, the Delhi High Court observed that barring donor eggs was prima facie against the surrogacy rules. The High Court of Calcutta, in a comparable case, allowed the use of donor oocytes in exceptional circumstances, suggesting an alignment with the Surrogacy Act.
This development in the Kerala High Court marks a critical juncture in the legal discourse surrounding reproductive rights and medical law, particularly in the context of surrogacy and the use of donor gametes.
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