Supreme Court Grants Exception for Surrogacy with Donor Egg Despite New Amendment

Oct20,2023 #Amend #egg #SUPREME COURT #Surrogacy
Supreme Court Law Insider

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Published on: October 20, 2023 at 10:50 IST

The Supreme Court, provided a crucial exception to a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a medical condition preventing her from producing eggs, allowing her to undergo surrogacy using a donor egg.

The Court’s decision temporarily suspends a recent amendment to the Surrogacy Rules, which disallowed the use of donor eggs for gestational surrogacy by intending couples. This amendment was introduced in March 2023.

The amended Form 2, along with Rule 7 of the Surrogacy Rules, specifically prohibited the use of donor eggs for gestational surrogacy by intending couples. Last week, the Court had already expressed concerns about this amendment, suggesting that restricting the use of donor eggs and sperm for gestational surrogacy contradicted Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

The Court’s decision came in response to a batch of pleas filed by married women afflicted with Mayer-Rokitansky-Kuster-Hauser syndrome. This congenital disorder results in absolute uterine factor infertility, leaving affected individuals unable to produce eggs due to their medical condition. For such women, gestational surrogacy becomes the only viable option for biological motherhood.

These petitioners had contested the amendment dated March 14, 2023, which changed paragraph 1(d) in Form 2, disallowing donor gametes for surrogacy. Prior to this amendment, paragraph 1(d) allowed the fertilization of a donor egg with the husband’s sperm. However, the new amendment restricts surrogacy to only the egg and sperm of the intending couple.

The Court’s primary concern was that the amendment seemed to contradict Rule 14(a) of the Surrogacy Rules, which permits gestational surrogacy for women with no uterus or an abnormal uterus. Therefore, the Court sought a medical opinion to ascertain whether the petitioners could produce eggs due to MRKH syndrome.

After reviewing the medical report of one of the petitioners, the Court concluded that she couldn’t produce eggs due to her condition, making the use of a donor egg the only viable option for achieving parenthood. The Court noted that this couple had initiated the surrogacy procedure long before the March 2023 amendment.

The Court stated, “The petitioner herein had commenced the procedure for achieving parenthood through surrogacy much prior to the amendment, which has come into effect from 14.03.2023. Therefore, the amendment that is impeding the intending couple from achieving parenthood through surrogacy, we find is prima facie contrary to what is intended under the main provisions of the act. In such circumstances, the amendment, i.e., Clause 1(d) of Form 2 read with Rule 7 of the Surrogacy Rules, is stayed, insofar as the petitioner herein is concerned.”

The Court made it clear that the stay on the amendment was specific to the petitioner’s case, and the broader issue remains under consideration.

The case involved arguments from Senior Advocate Sanjay Jain, representing the petitioner, and Additional Solicitor General Aishwarya Bhati, representing the respondents.

The debate centered on the retrospective effect of the amendment, as well as the intent of the legislature to ensure genetic connection between intending couples and the child.

The Court’s decision underscores the complexity of surrogacy regulations and the need for individualized considerations in cases where medical conditions hinder natural conception.

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