Notification barring use of donor gametes in surrogacy violates Surrogacy and ART Acts: Delhi High Court

The Delhi High Court recently held that the changes made in the surrogacy law barring the use of donor gametes in surrogacy procedures is in violation of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act [ART Act]..A Division Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula gave a prima facie finding that Central government’s notification that amended paragraph 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022 denied couples the access to legally and medically regulated procedures and there is no rationale for such discrimination.The Court observed that the amendment has effectively rendered the ART Act otiose and has led to a situation where disparate treatment is meted out between infertile couples based on their ability to produce viable oocytes.“In cases where a wife is able to produce viable oocytes, however is unable to carry a gestational pregnancy, the intending couple would be able to avail surrogacy procedures in accordance with law. However, should the wife not be able to produce viable oocytes, they would not be permitted to become parents through surrogacy,” the Court noted in its order of October 9. It further said that the notification does not disclose any rational justification, basis or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing surrogacy services..The High Court made the observations while dealing with petitions filed by two couples availing the surrogacy services. It was their case that the government came up with a notification on March 14, 2023 making changes to the Form 2 which is a consent form to be signed by the surrogate mother.The change effectively meant that the couples can only avail surrogacy if both the gametes (sperm and egg) are produced by the husband and the wife.Earlier, the law allowed for fertilization of a donor oocyte (egg) by the sperm of the husband. Therefore, couples facing infertility issues where the wife was unable to produce viable oocytes, could use donor eggs to fuse with the sperm of the husband.In both the cases before the court, the wives were not able to produce eggs and after pursuing in vitro fertilisation (IVF) for a long time, they finally opted for donor eggs.The couples stated that they had fertilised embryos (using donor eggs) and had them cryogenically preserved. While they were looking for a surrogate, changes were introduced to the law. .After considering the case, the Court held that a consent form executed by the surrogate mother cannot surreptitiously alter the rights to parenthood of an intending couple as granted under the Surrogacy Act.The fact the amendment exposes couples who commenced surrogacy procedures under the old regime to criminal prosecution by virtue of Section 43 of the Surrogacy Act raises significant legal and ethical concerns, the Court stressed.The Bench held that the notification is question is prospective in nature it cannot be allowed to retroactively render their legally fertilised embryo unviable.“Regardless of the fate of the Impugned Notification with regards to the challenge to its vires, it is essential to recognize that the Petitioners have secured a right to access surrogacy services which stood crystallised with the issuance of the Certificate of Medical Indication issued under Section 4(iii)(a)(I) of the Surrogacy Act. Moreover, given the fact that the embryo was generated prior to the issuance of the Impugned Notification, the Petitioners possess a legally enforceable entitlement to surrogacy. This right aligns with their basic civil, human and right to reproductive autonomy and parenthood.”.Both the petitioners were, therefore, allowed to resume the process of gestational surrogacy using their preserved embryos and the government authorities were ordered to facilitate the same in accordance with the regime that existed prior to the notification under challenge."It is made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother,” the Court underlined. .Senior Advocate Naveen R Nath with advocates Saumya Tandon, Siddarth Agarwal, Anirudh Agarwal, Arjun Basra, Kavita Nailwal, Disha Gupta, Dr SK Khatri and Sachin Kumar appeared for the first petitioner couples.Union of India was represented through Additional Solicitor General (ASG) Chetan Sharma, Central Government Standing Counsel (CGSC) Apoorv Kurup as well as advocates Gauri Goburdhun, Akhil Hasija, Archana Surve, Avshreya Pratap Singh Rudy and Amit Gupta.CGSC Arunima Dwivedi with advocates Avshreya Pratap, Pinky Pawar and Aakash Pathak also represented the Central government.Standing Counsel (Civil) Santosh Kumar Tripathi along with advocates Prashansha Sharma and Rishabh Srivastava appeared for the Delhi government..[Read Order]