Couple approaches Bombay High Court against changes to Surrogacy Rules barring 'infertile couples’ from availing surrogacy

A petition has been filed before the Bombay High Court challenging a notification amending the Surrogacy (Regulation) Rules, 2022 which effectively bars couples from availing surrogacy unless both of them have the ability to generate gametes..The petition challenged a notification issued by the Central government on March 14, 2023 amending Clause 1(d) mentioned in Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.The amended rule states that the intending couple undergoing surrogacy must have both gametes and that donor gametes are not allowed.It means that if the husband or the wife is not able to produce sperm or eggs (oocytes), they cannot avail the facilities under the Surrogacy Act..The plea was filed by a couple who tried for natural pregnancy but were unsuccessful due to the abnormally small uterus of the woman. They claimed to have approached various fertility clinics in Mumbai for surrogacy. However, they found that none of the clinics were registered and no surrogacy clinics had started functioning in Mumbai. In view of this, their application for obtaining an assisted reproductive technique was not acknowledged by any clinic and they approached the High Court..The present petition through Advocate Tejesh Dande sought for quashing of the new amendment on the ground that it would end up barring almost 95% of the intending couples from availing surrogacy. “It is matter of general knowledge that the couples approach doctors and experts when they fail to conceive naturally. In advanced age, the gametes of women would not be usable, the quality of eggs would not be as desired, and the baby, would not be that healthy”, the petition stated..The plea stated that neither the Surrogacy Act nor the Rules prohibited use of donor gametes for surrogacy. Clause 1(d) as it originally stood mentioned that the embryo to be implanted in the surrogate mother could be by fertilizing the eggs from an oocyte donor with the sperms of the husband in the case of an intending couple. The amendment, on the other hand, rendered the enabling factor of using a donor gamete redundant despite no amendment to the Act or Rules, the plea stated.“That 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.".The Delhi High Court earlier last week issued notice in a plea challenging the same amendment.