Infertile Couples Excluded From Opting For Surrogacy: Plea In Bombay High Court Challenges Notification Barring Use Of Donor Gametes

“…the principal reasons any intending couple or single woman tend to opt for surrogacy are infertility by birth or otherwise, various failed attempts through IVF procedures and advanced age due to various factors of life…Enforcing the impugned amendment would wipe out the hopes such persons of achieving pregnancy and becoming parents which is an integral part of life”, the petition contends.

The petition has been filed by a couple who were unsuccessful in natural pregnancy and thus sought to avail surrogacy.

The petition, filed through Advocate Tejesh Dande, challenges a Central Government notification dated March 14, 2023, amending Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.

As per the amendment, the procedure is restricted to the use of gametes of only the intending couple undergoing surrogacy, and no donor gamete is allowed. Further, a single woman undergoing surrogacy is allowed to use only self-eggs and donors forms.

The amended Clause 1(d) reads –

“(d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed; (II) Single woman (widow/ divorcee) undergoing Surrogacy must use self eggs and donor sperms to avail surrogacy procedure.”

According to the petition, this amendment defeats the purpose of the Surrogacy (Regulation) Act, 2021 which is an enabling statute for couples as well as single women who cannot bear a child on their own.

Clause 1(d) before the amendment mentioned that the procedure may include the fertilization of a donor oocyte by the sperm of the husband.

The amendment renders this enabling factor of using a donor redundant despite their being no such amendment in the Surrogacy Act or Rules, the petition argues adding that a mere clause in a consent form is changing the entire scope of the Act defeating its purpose.

The petition states that the Surrogacy (Regulation) Act allows for couples with one child with genetic defects to have another child through surrogacy. It is against logic to force a couple to have another child with the same abnormality as donor gametes cannot be used due to the amendment, the petition contends.

“So also, when the existing child is abnormal because of passing down of genetic or chromosomal material from one or both parents, it defies the basic logic to again force the intending couple to have another child with the same abnormality”, according to the petition.

The petition contends that the amendment violates Articles 14, 19 and 21 of the Constitution.

“…in absence of any logical or legal reasoning by introducing any provision to that effect in the Surrogacy Act or Rules, the impugned amendment is ultra vires to the Articles 14, 19 and 21 of the Constitution of India”

Therefore, the petitioners have sought a writ of certiorari or any other appropriate writ quashing the impugned notification issued by the Department of Health Research, Ministry of Health and Family Welfare.

The petitioners have also sought a stay on the effect of the notification during the pendency of the present writ petition.

The Delhi High Court last week issued notice in a writ petition challenging the same amendment.

Case Title – Pooja Avinash Nandurkar and Anr. v. Union of India and Ors.