Bombay High Court permits couples to avail surrogacy through donor gametes despite statutory bar

The Bombay High Court recently allowed two couples to avail surrogacy through donor gametes (eggs), which is barred under the amendment to Surrogacy Regulation Rules. [XYZ v. UOI & Ors.].The amendment to the Regulations of 2022 barred couples from availing surrogacy unless both of them can generate gametes. Aggrieved by this amendment, the petitioner couples approached the High Court..A Bench of Justices GS Kulkarni and Firdosh Pooniwalla observed that the wives failed to conceive due to various medical complications.“The petitioners contend that they were left with no option but to achieve parenthood by surrogacy. Considering such facts, the petitioners need to adopt the surrogacy procedure and in doing so, they cannot be foisted with the rules under challenge. It is ordered that the rule shall not be applied to the petitioners and they would be entitled to opt for surrogacy,” the order stated..The petitioners argued that imposing such a condition as under Rule 1(d)(I) & (II) is violative of the provisions of the Surrogacy Act and would defeat the entire purpose of availing surrogacy.They also informed the Bench that there was a challenge to the amendment pending before the Supreme Court. In an interim order passed on October 18, 2023, the apex court observed the scheme of the Act and Rules prima facie seemed contrary to the intention of the Surrogacy Act. It thus stayed para 1(d) in Form 2, which requires consent of the surrogate mother and agreement for surrogacy, read with Rule 7 of the Surrogacy Rules with respect to the petitioners before it..Granting similar relief to the present petitioners, the High Court observed that it is imperative for them to proceed to achieve parenthood by surrogacy. However, in doing so, they cannot be foisted with compliance of Rule 1(d)(I) of the amendment as set out in the notification dated March 14, 2023.“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.".Advocates Tejesh Dande, Vishal Navale, Bharat Gadhavi, Trusha Shah, Vikrant Khare, Pratik Sabrad, Chinmay Deshpande, Sarvesh Deshpande and Janaki Patil appeared for the couples.Advocates YR Mishra and Anusha P Amin appeared for the Union of India.Additional government pleaders Jyoti Chavan and Sachin H Kankal appeared for the State of Maharashtra..[Read order]