The Karnataka High Court observed that the amendment brought about to the Surrogacy (Regulation) Rules, 2022, is blatantly contrary to law as it takes away the right of intending couple to opt for surrogacy on medical condition.

The court observed thus while considering writ petitions challenging the notification issued by the Department of Ministry of Health and Family Welfare amending the 2022 Rules. The court however left the challenge against the amendment uanswered, as it noted that the challenge to it is pending consideration before the Apex Court.

A Single Bench of Justice M. Nagaprasanna said, "In the considered view of the Court, though this Court finds the amendment blatantly contrary to law, is not answering the challenge, as the challenge is pending before the Apex Court. Wherefore, I deem it appropriate not to annihilate the same."

The judgment began with a quote from Robert Brown saying, “All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has for and sacrificial, though; now again, science has forced us to alter our perspective of motherhood.”

Advocate Gautam S. Bharadwaj represented the petitioners while Deputy Solicitor General H Shanti Bhushan, Central Government Counsels Irfana Nazeer and M.N. Kumar, and Additional Government Advocate Navya Shekhar represented the respondents.

The writ petitions challenged the amendment brought about to the Surrogacy (Regulation) Rules, 2022, in terms of the notification dated March 14, 2023 issued by the Union of India, with a particular challenge to the amendment to clause (1)(d) of Form No.2 of the Surrogacy Regulations which read thus: "Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed"

In one of the petitions, the petitioners were husband and wife who got married in the year 2007. Being desirous of expanding their family, they tried to conceive naturally, but were unsuccessful for the last 16 years since the wife was having bulky uterus with thick endometrium which hindered conceiving naturally. Therefore, they were left with the only option that is surrogacy. Since, the said notification prohibited it, they called in question the notification, as in the companion petitions.

The High Court in view of the issues raised by the parties observed, “Science or scientific development never ceases to surprise us; it always outmaneuvers us. We humans, therefore, should either change or become immaterial. Law is no exception. It is now the turn of law to appreciate, the variance in the concept of the divine duty, of motherhood metamorphosing, into split motherhood, albeit, in certain circumstances. The turn to appreciate this dichotomy forms the fulcrum of the issue in the lis and becomes the kernel of the conundrum.”

The Court noted that there can be no impediment to consider the cases of the petitioners on a case to case basis, strictly in consonance with the Act, Rules and the concept of gestational surrogacy.

"The amendment is that the couple undergoing surgery must have both gamete from the intending couple and donor gametes is not allowed. It specifically, pins at an intending couple, but not to any others. The purport of the amendment is that both the husband and the wife must have their own gamete and not donor gamete. In the considered view of the Court, this throws Rule 14 (supra) to the winds. An amendment to a Form, is trite, that it cannot run counter to the Act or the Rules. Rule 14 permits gestational surrogacy to be availed by a women who have medical conditions. Medical conditions are also defined under Rule 14. The situation now that has emerged is, what the Act recognizes, Rule permits, a Form appended to the Rule washes it away, in effect, the Form appended to the Rule – the consent Form, takes away the right or liberty granted to opt for surrogacy in terms of Rule 14, particularly to the intending couple. Rule 14 is framed in exercise of power conferred under Section 50 of the Act. Rule 14 permits an intending couple to opt for surrogacy on medical conditions. Medical conditions are also depicted under Rule 14. The Rule that permits surrogacy is taken away by the impugned notification which is an amendment to the consent Form of surrogacy.", the court said.

Furthermore, the Court observed that the claims made to opt for surrogacy have to pass through the rigors of Sections 26 and 35 of the Act and the District Medical Board. It said that the conditions that every one of the petitioners are undergoing or as is depicted by the medical practitioners would clearly indicate necessity of surrogacy, which would mean that the petitioners are all entitled to opt for surrogacy under the Rule, Rule 14 in particular read with provisions of the Act and the ART.

“In the light of the peculiar quagmire and the impending urgency of every one of the petitioners qua their medical conditions, they would become entitled to a mandamus to be issued in acceptance of the prayers that are sought in the respective writ petitions, but not for obliteration of the amendment, as the same is the subject matter of challenge before the Apex Court in the afore-quoted judgment in the case of ARUN MUTHUVEL V. UNION OF INDIA”, concluded the Court.

The Court, therefore, clarified that the authorities cannot insist or direct the petitioners that the donor gamete cannot be made use of by the intending couple and that they shall forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfil all other conditions.

Accordingly, the High Court partly allowed the petitions and permitted the petitioners to opt for surrogacy.

Cause Title- Smt. XXXX & Anr. v. Union of India & Anr.

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