Ban on donor gametes for gestational surrogacies contrary to Surrogacy Act: Supreme Court

A complete ban on using donor gametes (eggs or sperm) in gestational surrogacies is against the Rules under the Surrogacy Act, the Supreme Court recently observed [Arun Muthivel vs Union of India and ors]..A bench of Justices BV Nagarathna and Ujjal Bhuyan made the observation while granting relief to a woman who could not produce her own eggs. .The Court has now allowed her to opt for gestational surrogacy (where the surrogate mother carries a child to whom she is not genetically linked, on behalf of another couple) by using a donor egg by its October 18 order..The Court observed that Rule 14 of the Surrogacy Rules allows for gestational surrogacy where an intending mother is unable to conceive using her own gametes (eggs or ova). .As such, the Court said that a March 14, 2023 notification issued by the Union Health Ministry cannot be interpreted to mean that the use of donor gametes is banned where it is impossible for the intending mother to use her own gametes. ."[Such a rule] is in the nature of a mandate prohibiting or permitting the use of gametes of the intending couple or the single woman, as the case may be, and does not relate to fertilisation or other procedures contemplated therein. In other words, the fertilisation of a donor oocyte by the sperm of the husband is deleted (by the March 14 notification). This in our view is contrary to what is contemplated under Rule 14(a) of the Surrogacy Rules", the Court held..The bench was hearing a plea by a woman who suffered from the Mayer-Rokitansky-Küster-Hauser syndrome. The plea was heard along with a batch of public interest litigation (PIL) petitions challenging the ban on commercial surrogacy.In the PILs, the petitioners have challenged the validity of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as well Rules framed under each Act.The Central government had earlier said that the Surrogacy Act does not permit a surrogate mother to provide her own gametes (ova or egg cells) for the child to be born out of the surrogacy..The Supreme Court has now observed that there may be situations where a donor egg may have to be used for surrogacy. "When an intending woman avails of surrogacy naturally, she would have to use her own oocytes or eggs and donor’s sperm. Conversely, when the woman in the intending couple is unable to produce oocytes or eggs, then donor oocytes or eggs have to be made use of," the Court explained. .The bench also highlighted that the surrogacy laws were "women-centric" and made to tackle a situation where a woman is not able to conceive naturally. The insistence on there being a genetic link between the surrogate child and the parent should not be interpreted to mean that there must be a genetic link between the child and the intending woman or wife, the Court added. "The justification for necessitating gestational surrogacy in Rule 14 is all related to the intending woman or the wife and does not refer to the man/husband at all. The said provision is woman-centric and relates to the medical or congenital condition of a woman, which impedes her from becoming a mother. Therefore, the whole scheme of the Act revolves around the “inability” of the woman to conceive and to give birth to a child," the Court said. .The absence of a uterus or eggs/oocytes is a condition that allowed gestational surrogacy as per Rule 14, the Court further noted, while granting relief to the intending couple in the present case. .The Court also reasoned that the ban on donor gametes for such women is, prima facie, contrary to the provisions of the Surrogacy Act. Moreover, the Court noted that the intending couple, in this case, had begun surrogacy procedures even before the Health Ministry's March 14 notification. The Court agreed with the couple's contention that the notification would not have retrospective effect to cover them. .It, therefore, stayed the Surrogacy Rules in question with respect to the intending couple in the present case. "If the petitioner Mrs. ABC otherwise fulfils all other conditions mentioned under the Act, she is entitled to proceed with the process of surrogacy, " the Court said. .Senior Advocate Sanjay Jain appeared for the intending couple. Additional Solicitor General Aishwarya Bhati appeared for the Central government and Surrogacy board..[Read Order]