Kerala High Court asks government to respond to plea challenging ban on use of donor gametes for surrogacy

The Kerala High Court sought the response of the Central and State governments on a petition filed by a married couple challenging an amendment to the Surrogacy (Regulation) Rules, 2022, which prohibits the use of donor gametes (eggs or sperms) for surrogacy..Justice Devan Ramachandran issued notice to the Kerala State Assisted Reproductive Technology and Surrogacy Board as well as the Central and State governments..The petitioners, a married couple, faced fertility challenges as the wife suffered from Systemic Lupus Erythematosus (SLE), a chronic inflammatory disease affecting various organs. After failed attempts at assisted reproductive technology, the wife's health deteriorated, leading to a heart attack in 2021.The plea said since she was advised against pregnancy due to her cardiac condition, the couple sought surrogacy, but the wife's premature ovarian failure required the use of donor gametes.However, a recent amendment to paragraph 1(d)(I) of Form No.2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, prohibits the use of donor oocytes (ovary cells), hindering the petitioners from proceeding with surrogacy.The petitioners argued that the amendment contradicts Rule 14(a) of the Surrogacy Rules, which recognizes the absence of a uterus or allied conditions as a medical indication necessitating gestational surrogacy.The plea stated that the High Court of Calcutta, in a similar case, has already interpreted the amendment more flexibly, suggesting an alignment with the Surrogacy Act and allowing the use of donor oocytes in exceptional circumstances.The plea added that the Supreme Court, in another such case, permitted surrogacy with donor oocytes, provided other statutory conditions were fulfilled..The petitioners before the High Court have contended that the amendment, as it stands, imposes an additional restriction not envisaged by the Surrogacy Act and Rules, putting them at a disadvantage.Given the medical complexities faced by the wife and the supportive legal precedents, the petitioners have urged the Court to grant them relief so that they could proceed with surrogacy using donor oocytes..The petitioners are represented by advocates Adithya Rajeev, S Parvathi and Safa Navas..The Supreme Court on October 18 granted relief to a woman who could not produce her eggs and allowed her to opt for gestational surrogacy by using a donor egg.The Delhi High Court on October 9 held that the changes made in the surrogacy law barring the use of donor gametes in surrogacy procedures violate the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act.