LI Network
Published on: October 11, 2023 at 10:39 IST
The Supreme Court has raised concerns over the insistence that only the eggs and sperm of intending couples can be used for gestational surrogacy. The Court deemed this restriction to be prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.
This issue emerged following an amendment introduced in March 2023 to Form 2, in conjunction with Rule 7 of the Surrogacy Rules. The amendment explicitly stated that donor eggs could not be utilized for gestational surrogacy involving intending couples.
The Supreme Court’s observations came during a hearing involving several pleas filed by married women who suffer from Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome, a congenital disorder leading to absolute uterine factor infertility. For individuals affected by MRKH syndrome, gestational surrogacy offers the only path to biological motherhood because they cannot produce eggs due to their medical condition.
The petitioners challenged the amendment dated 14.03.2023, which modified Form 2 under Rule 7 of the Surrogacy Rules. This form is used for the Consent of the Surrogate Mother and Agreement for Surrogacy.
The recent amendment altered paragraph 1(d) in Form 2, ensuring that couples opting for surrogacy cannot use donor gametes. Both the male and female gametes must come from the intending couple. Before this change, paragraph 1(d) of Form 2 allowed for the fertilization of a donor egg with the husband’s sperm. However, the amendment removed the option of using donor gametes in surrogacy arrangements.
Furthermore, the amendment stipulated that single women (widowed or divorced) must use their own eggs and donor sperm for surrogacy procedures.
The petitioners argued that these changes contradicted Rule 14(a) of the Surrogacy Rules, which permits gestational surrogacy when a woman has no uterus or an abnormal uterus.
A bench consisting of Justice B V Nagarathna and Justice Ujjal expressed its prima facie concern, stating that the substitution in Form 2 appeared to be in conflict with Rule 14(a) of the Surrogacy Rules. The government defended the substitution by asserting that its purpose was to prevent the exploitation of women through surrogacy.
The petitioners argued that they had initiated the surrogacy procedure well before the amendment and that the amendment to Form 2 should be applied prospectively and not retroactively.
The Court decided that before reaching a final decision, it should obtain a medical opinion. Thus, it directed the District Medical Board to assess whether the petitioners were capable of producing oocytes (eggs) due to MRKH syndrome. The Medical Board’s report will be submitted in a sealed cover to protect the petitioners’ privacy.
The case is scheduled for further consideration on 17.10.2023.