Keywords: Surrogacy, infertility, Delhi high court.
On Tuesday, in an application challenging the notification to amend the Surrogate Regulation Act of 2022 which effectively prohibits couples from having surrogacy unless they are capable of producing their own gametes, the Delhi High Court sought replies from the Central and State Governments. The government was served with a notice by the Division Court of Chief Justice Satish Chandra Sharma and Judge Subramonium Prasad.
A couple who wished to have a child through surrogacy had filed a plea that the Court was handling. The petition says that the wife can’t produce ovarian cells, while the couple has been authorized to use surrogacy techniques as an advanced form of treatment or infertility. The couple, in their petition, mentioned that the Central government had modified para 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, through a notification on March 14, 2023. The revised regulation states that the couple opting for surrogacy must contribute both gametes and prohibits the usage of donated gametes. This notification provides that they cannot avail themselves of the reproductive facilities provided for in the Surrogacy Act if a husband or wife is not able to produce sperm or eggs.
In the petition it was stated, “When the Central Government amended Form 2 in accordance with Rule 7 of the Surrogates Regulations; the applicants were looking for a surrogate to carry their unborn baby into term. The amendment provides that infertile couples who are unable to produce gametes will not be allowed to use surrogacy services. As a result, the Petitioners have been deprived of their right to Parenthood for all times to come and their embryo has become ‘legally unviable’ for the purpose of achieving parenthood[1].”
Furthermore, it submits that the amendment is inconsistent with the Act and constitutes discriminatory discrimination against those who are similar in circumstances without any intelligible criteria being laid down. The couple said that the inability of one petitioner to make a gamete was the only reason for refusing their surrogacy application.
Furthermore, the amendment could give rise to criminal liability of bona fide infertile couples as a consequence of Section 40-42 of the Surrogacy Act and their vulnerability to surrogates.
Aditya a student of ILSR, GLA University, Mathura, 2nd Semester, an intern under Legal Vidhiya
[1] BAR AND BENCH, https://www.barandbench.com/news/litigation/delhi-high-court-issues-notice-in-plea-against-changes-to-surrogacy-rules-barring-infertile-couples-from-availing-surrogacy (last visited on 9th May, 2023).
