The High Court of Karnataka has allowed 13 couples to use donor gametes for surrogacy while refraining from examining the validity of the amendment to the Surrogacy (Regulation) Rules, as a similar plea is pending before the Supreme Court.
“The authorities cannot insist or direct the petitioners that the donor gamete cannot be made use of by the intending couple. The authorities shall forthwith process the applications, if any, and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfill all other conditions,” Justice M Nagaprasanna said in his judgment on a batch of 13 petitions.
On March 14, 2023, the union government issued a notification amending Clause (1)(d) of Form No 2 of the Surrogacy Regulations. The amendment was brought in “to prevent rampant commercialisation of surrogacy, which had become popular as ‘rent a womb’,” the HC was informed during arguments over the petitions.
The earlier clause which said, “The fertilisation of a donor oocyte by the sperm of the husband” was replaced by “Couple undergoing surrogacy must have both gamete(s) from the intending couple and donor gametes is (are) not allowed.”
As per the petitions filed by the 13 couples, all the wives were unable to conceive as they had health issues, which included a heart condition in one case. This prevented them from conceiving or using their gametes for surrogacy. All of them required donor eggs/gametes which would be used with the husband’s gametes/sperm for conceiving.
The HC noted that while the rules permit gestational surrogacy, the amended form takes it away.
Citing the medical conditions of all the 13 women (one of them died while the hearing was still pending), the HC noted, “If the medical conditions quoted of all the 1st petitioners in these cases are considered on the bedrock of the provisions quoted hereinabove, it would clearly indicate that they are entitled to opt for gestational surrogacy. The Act permits; the Rules permit; (but) the Form appended to the Rules takes away the right of intending couple.”
Though the Court said the amendment was blatantly contrary to law, “(it) is not answering the challenge, as the challenge is pending before the apex court.”
Allowing the petitions in part, the HC directed the authorities that the petitioners are entitled to opt for surrogacy, “subject to them fulfilling all other conditions and requirements under the statute, except the one that is in the notification dated 14-03-2023.”
