Reproductive Health Is A Facet Of Personal Liberty Under Article 21: Bombay HC Permits Couples To Adopt Surrogacy Procedure Via Prohibited Donor Gametes

The Bombay High Court permitted two couples to adopt a surrogacy procedure through prohibited donor gametes saying that the reproductive health is a facet of personal liberty under Article 21 of the Constitution.

The Court was dealing with a batch of two writ petitions filed by the husband and wife who contended that they could not achieve parenthood due to serious medical issues suffered by wife.

A Division Bench comprising Justice G.S. Kulkarni and Justice Firdosh P. Pooniwalla observed, “It is well settled that the reproductive health is a facet of personal liberty under Article 21 of the Constitution of India. However, when such right is required to be exercised by taking recourse to the procedure of Surrogacy, the Parliament has regulated the same by enactment of the Surrogacy Act. The Surrogacy Act makes provisions to regulate surrogacy clinics inter alia by prescribing strict conditions in regard to surrogacy clinics and the surrogacy procedures.”

Advocate Tejes Dande appeared for the petitioners while Assistant Government Pleader Jyoti Chavan appeared for the respondents.

Brief Facts -

Between the period of 2011 to 2023, the wife underwent surgeries and confronted with several ailments arising from genetic abnormalities, the couple was advised that it would not be possible for the wife to bear a child in the natural course and the only option for them, was to have a child by surrogacy. When the couple intended to take recourse to the procedure of surrogacy under the provisions of the Surrogacy (Regulation) Act, 2021 and under the Rules framed thereunder, they were confronted with what was prescribed by the notification issued by the Government of India, Ministry & Family Welfare.

By the aforesaid notification issued in exercise of powers conferred under Section 50 of the Surrogacy Act, the Central Government framed the Rules to amend the Surrogacy (Regulation) Rules 2022 as contained in Form-2 under Rule 7, whereby amending existing para 1(d) (I), a new stipulation as contained in Rule 1(d)(I) & (II) was prescribed. The said rules prohibited donor gametes. The couple was aggrieved by such condition as imposed by the said rules.

The High Court in view of the above facts noted, “… we are of the clear opinion that if the protection as prayed for is not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023.”

The Court further said that the petitioners would be entitled to opt for surrogacy, subject to them fulfilling other conditions and requirement under the 2021 Act and Rules except the notification.

“The case of the petitioners is that the wife/petitioner no. 1 could not conceive due to various medical complications as set out in the writ petition. The petitioners approached various fertility clinics between the period 2015 to 2022 and experts in the field, for proper treatment, fertility study etc. with a hope of pregnancy. However, the petitioners failed to get any positive results out of the IUI as well as IVF procedures undergone”, it also noted.

The Court observed that because of persistent failures of the earlier procedures, the experts have opined the wife not to use her own eggs for having a child as the chances of having similar consequences, cannot be overruled out, which would be detrimental to the mental and emotional health of the petitioners.

“In our opinion, considering such facts, the petitioners need to adopt the surrogacy procedure and in doing so, they cannot be foisted with the impugned rules (paragraph 1(d)(I) as contained in the notification dated 14 March, 2023. The petitioners would also be entitled to similar reliefs as granted in the aforesaid Writ Petition”, it concluded.

Accordingly, the High Court allowed the petitions and ordered that the petitioners would be entitled to opt for surrogacy.

Cause Title- XYZ & Anr. v. The Union of India & Ors. (Neutral Citation: 2024:BHC-AS:6439-DB)

Appearance:

Petitioners: Advocates Tejesh Dande, Vishal Navale, Bharat Gadhavi, Trusha Shah, Vikrant Khare, Pratik Sabrad, Chinmay Deshpande, Sarvesh Deshpande, and Janaki Patil.

Respondents: Advocates Mishra, Anusha P. Amin, AGP Sachin H. Kankal, Addl. G.P. Jyoti Chavan, Addl. G. P., and Advocate Rishikesh M. Pethe.

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