Bombay High Court – Important Judgment – Surrogacy – Legality of new stipulation in Rule 1(d)(I) of Rules prohibiting donor gametes
Bombay High Court – Important Judgment – Surrogacy (Regulation) Act, 2021 and Rules of 2022 – Notification dated 14.3.2023 – Legality of new stipulation in Rule 1(d)(I) prohibiting donor gametes
By the Notification dated 14th March 2023 and in exercise of powers under Section 50 of the Act, the Central Government had amended the Surrogacy (Regulation) Rules, 2022.
The new following stipulation in Rule 1(d)(I) and (II) was prescribed –
“1.(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.”
It was contended that the new amendment prohibiting donor gametes is preventing the intending couples to have a child through surrogacy. The petitioners had no alternative due to medical history but to opt for surrogacy.
HELD that reproductive health is a facet of personal liberty under Article 21 of the Constitution of India. Such a right is to be exercised through surrogacy and therefore, the Parliament has enacted the Surrogacy Act. The medical condition of the wife does not support parenthood by surrogacy by using wife’s gamete. It is, therefore, imperative to the petitioners to proceed to achieve parenthood by surrogacy. However, the petitioners cannot be foisted with the compliance of Rule 1(d)(I) as above. It was found that if the protection as prayed for is not granted, it would prejudice legal rights of the petitioners to achieve parenthood through surrogacy.
Reliance was placed on the order of the Hon’ble Supreme Court in Arun Muthvel Vs. Union of India – W.P.(Civil) No.756 of 2022) followed by the Karnataka High Court in the case of Smt. XXX Vs. Union of India and another.
