Apex Court Allows Woman Unable To Produce Oocytes To Undergo Surrogacy, Stays Provision In Surrogacy Rules Qua Petitioner

The petitioner-woman intended to achieve motherhood through gestational surrogacy within the legal framework in India, however the substitution of Clause 1(d) in Form 2 which is the Consent of the Surrogate Mother and Agreement for Surrogacy read with Rule 7 of the Surrogacy (Regulation) Rules, 2022 made under the Surrogacy (Regulation) Act, 2021 restricted her to do so. As per the amendment, a couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed.

Accordingly, a bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan observed, “…wife not being able to achieve parenthood owning to the ‘disability on account of an absence of uterus or repeatedly failed pregnancy, multiple pregnancies or an illness which makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening’, the justification for necessitating surrogacy are all related to the woman or the wife and do not refer to the male at all. Therefore, the whole scheme of the Act revolves upon the ‘disability of the woman to conceive and have a normal child and the medical indications necessitating gestational surrogacy’ in Rule 14 explains the various circumstances which would incapacitate a woman from having a normal pregnancy and having a normal child. In such circumstances, therefore, the intending couple would have to have a child through a donor oocyte because in any of those conditions it may not be possible for the woman to produce oocytes. Otherwise, the Rule 14A which has to be read as part of Section 2r cannot be given effect to all, having regard to the Scheme of the Act”.

While noting that the couple had already commenced the procedure for becoming parents before the amendment came into force i.e. March 14, 2023, the bench further observed, “Therefore, the amendment which is now 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 the circumstances, the Amendment is stayed, i.e. Clause 1(d) of Form 2 read with Rule 7 of the Rules, in so far as the petitioner herein is concerned. It is needless to observe that if the petitioner otherwise fulfils all other conditions mentioned under the Act, she is entitled to achieve parenthood through surrogacy”.

Senior Advocate Sanjay Jain appeared for the petitioner and ASG Aishwarya Bhati appeared for the respondent.

The bench while giving directions, also remarked, "It's all for the woman only, nothing to do with the man. So if the man is not able to have sperms then we don’t know what happens in such cases, we have not applied our mind”.

In the present matter, the petitioner had contended that the substitution of paragraph 1(d) in Form 2 is contrary to what is stated in Rule 14(a) of the Surrogacy Rules which recognizes the absence of the uterus which is caused by the MRKH syndrome, which is a disability and which is a justification for gestational surrogacy. Further, it was also submitted that the petitioner had commenced the procedures for achieving motherhood through surrogacy before the amendment came into force, therefore the same should not be applied to them retrospectively.

Citing an urgency in the matter, the petitioners also submitted that out of the three cycles, only 2 are available as 1 has already been availed. While it was also submitted that the expression "intending couple" must be read to indicate that the same does not mean that both should have a medical indication necessitating gestational surrogacy, and that if either of them has it would suffice for the purposes of the Surrogacy Act.

However, the Union of India while placing reliance on Section 2(1)(zg) contended that the object of the Act is to curb exploitation of women through the practice of surrogacy and therefore, the intention of the Parliament must be given effect to in the present matter as well. Further, the Petitioner contended that if, for any reason, there is a bar for donation of oocytes, then the same has to be respected as the oocytes and the sperms of the intending couple only have to be made use of for achieving gestational surrogacy, otherwise the only other option they have is to adopt a child.

The bench in its earlier order dated October 9, 2023, had directed “..before we proceed further in the matters, we think it is necessary to seek a medical opinion from the concerned District Medical Board in order to seek a certification as to whether the petitioners/applicants are in a position to produce oocytes or not, having regard to the diagnosis of the MRKH syndrome in them. Hence, the petitioners/applicants shall be present before the concerned District Medical Board on 11.10.2023 so as to be examined and a Report shall be submitted in a sealed cover to this Court so as maintain the right of privacy of the petitioners/applicants and confidentiality in the matter”.

The bench had also noted, “We have considered the aforesaid submissions with all seriousness. Having regard to the challenge made to paragraph 1(d) in Form 2 namely, the substitution as referred to above, we find, prima facie, that this is a case where the said substitution is contrary to what is stipulated in Rule 14(a) of the Surrogacy Rules”.

Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome-it is a condition which is stated to affect the reproductive system of the female and is caused by abnormal development of the Müllerian ducts which are structures in the embryo that develop into uterus, fallopian tubes, cervix and the upper part of the vagina. MRKH syndrome involves absolute uterine factor infertility and the only option for the persons with such disability to achieve biological motherhood is through gestational surrogacy. The other option is uterus transplantation which is an impossibility in many cases.

Cause Title: ABC v. Union of India & Ors.