The Bombay High Court on Friday allowed two couples to go ahead with surrogacy procedures with donor gametes / eggs.
The court was hearing petitions filed by two couples challenging a notification issued by the central government on March 14, 2023, that allowed the use of only gametes of a couple for surrogacy and had disallowed donor gametes.
The cases
In the case of the first couple, the wife suffered from a chromosomal defect. In the case of the second couple, the wife had miscarriages. Their advocate argued that since the notification was issued not a single surrogacy has taken place in Mumbai.
Additional Government Pleader Jyoti Chavan submitted three government resolutions and informed the bench that they have set up the State Assisted Reproductive Technology and Surrogacy Board to decide on surrogacy pleas.
A division bench of Justices Girish Kulkarni and Firdosh Pooniwalla, while allowing the petitions, followed the Supreme Court’s order of October 18, 2023, by which it stayed the Centre’s notification vis à vis the petitioner couple, pending hearing in their plea challenging the notification. The apex court had allowed the couple to proceed with surrogacy.
Bench's observations
The bench also noted the order of the Karnataka HC of November 2023, which pending challenge to the notification before the Supreme Court, permitted over 10 couples to opt for surrogacy. It observed that the notification is inapplicable to the petitioners and that they are entitled to opt for surrogacy subject to all other conditions and requirements under the statute except the one in the March 14, 2023.
One of the petitions before the Bombay HC challenged the central notification contending that a “single woman (widow or divorcee)” has to use “self-eggs” to avail of the procedure. “...such restrictions on proceeding ahead with surrogacy has barred almost 95% of the intending couples”. It urged the HC to quash and set aside the March 14 notification by the Ministry of Health and Family Welfare’s Department of Health Research, which inserted a new clause in the consent form under Surrogacy (Regulation) Rules.
Details of the petition
The couple married in 2007 when they were 24 and 31 years old, respectively. After trying for natural pregnancy between 2015 and 2022, they approached fertility clinics and experts but failed. They claimed that they lost crucial time during the pandemic since they could not take help of assisted reproductive technique (ART).
The plea said that couples approach doctors when they fail to conceive naturally. Due to certain medical conditions a woman is unable to produce gametes and medical science has proved that at an advanced age, the quality of eggs would not be as “desired” and the baby “not that healthy”.
“Such women who are unable to produce their own eggs are completely prevented and barred from availing the assisted reproductive technique due to the impugned notification,” it stated.
Terming the amendment as “cruel”, the plea said it makes a “mockery” of the surrogacy procedure as it jeopardises “the health of intending women who will be unnecessarily subjected to repeated hormonal stimulation and makes the surrogate mother also subject to unnecessary procedures involving hormonal medication for embryo transfer”. Further, the amendment is a “violation of constitutional rights” and defeats the purpose of the Act, it adds.
