Delhi High Court issues notice in plea against changes to Surrogacy Rules barring 'infertile couples' from availing surrogacy

The Delhi High Court on Tuesday sought responses from the Central and Delhi governments on a plea 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..A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad issued notices to the governments..The Court was dealing with a plea filed by a couple looking to conceive a child through surrogacy. The petition states that the wife is unable to produce oocytes and the couple has been certified for availing the surrogacy procedure as an advanced treatment or infertility.In their petition, the couple said that the Central government issued a notification on March 14, 2023 amending para 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.The amended rule now says that the intending couple undergoing surrogacy must have both gametes and that donor gametes are not allowed. The notification 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 Petitioners were looking for a surrogate to carry the pregnancy to term, when the Central Government made an amendment to Form 2 under Rule 7 of the Surrogacy Rules… The amendment effectively bars use of Surrogacy Services by infertile couples unless both of them have the ability to generate gametes. As a result, the Petitioners have been deprived of their right to Parenthood for all times to come and their embryo has become 'legally unviable' for the purpose of achieving parenthood,” the petition stated. .It further said that the amendment is contrary to the Act and creates invidious discrimination between similarly situated persons without disclosing any intelligible criteria. The only basis for denying the petitioners surrogacy is the inability of one of them to produce gametes, the couple argued.They added that the amendment has the potential of exposing bona fide ‘infertile couples’ to criminal prosecution and make them vulnerable to the surrogates by virtue of Section 40-42 of the Surrogacy Act.“The bottom line appears to be that infertile couples are discriminated against only on the basis of whether they have the capacity for bearing gestational pregnancy. Where the wife has a viable or healthy uterus, such a couple are permitted the use of donor gametes whereas if the wife in another case does not have the capacity to carry gestational pregnancy the couple is denied surrogacy and parenthood rights.”.The petition has been filed through Advocates Lalit Mohini Bhat, Saumya Tandon, Siddharth Agarwal, Anirudh Bhat and Arjun Basra.