The Supreme Court today refused to entertain a petition challenging the Union Health Ministry's General Statutory Rules which prohibits donor gametes to couples opting for children through surrogacy, as it violates the provisions of the Surrogacy (Regulation) Act, 2021. The bench took note of the fact that the issue is already under consideration of the Court.

A bench of Justice Bela M. Trivedi and Justice Prashant Kumar Mishra pointing out that the said notification is already under challenge, exclaimed, “Why should we entertain this petition...No need to file petition one after the other, just to have publicity, if you don’t have any other case”.

Resultantly, when the Senior Counsel representing the petitioner sought to withdraw the case, the bench allowed the petitioner-lawyer to withdraw his plea.

As per Section 2(g) of the Assisted Reproductive Technology Regulation Act, 2021, a "gamete" means sperm and oocyte, while under Section 2(h), a "gamete donor" means a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child.

The petition was filed by Advocate Nalin Tripathi.

At the outset, the Counsel representing the petitioner explained how the present challenge is different from the already pending challenge and submitted that "It is a specific challenge to the GSR, the main challenge is to the statute...The notification is not under challenge (in the main challenge). What is under challenge is the Surrogacy Act, 2021 and Assisted Reproductive Technique (Regulation) Act, 2021”.

"Both the parent acts are under challenge...He is a practicing lawyer for the last 27 years and we don’t gain anything by way of publicity at all...He has been working in this field for the last 10 years", she further submitted.

The counsel then further urged the bench to look at the far-reaching impact of the challenge. "Issue is pending. Issue is of the parent statute. It is pending before your ladyship…we have also found that your ladyship has been hearing it prior to the vacation, in fact this is a neat question", she further added.

"Yes we will decide, but not in this matter, in the other matter", Justice Trivedi answered.

"Yes I understand there is a technical lacunae, and your ladyship is well within her rights to ask", said the Counsel.

"Nobody can challenge our authority to ask question”, Justice Trivedi said in response. However, agreeing with the importance of the subject matter, Justice Trivedi observed, "It is an important issue, no need to file one petition after the other".

As per the GSR dated March 14, 2023, firstly, a couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed; and secondly, single women (widow/divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure.

Cause Title: Nalin Tripathi v. Union of India