The Supreme Court yesterday allowed a 38 year-old woman with a congenital disorder known as Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome, also referred to as Müllerian Aplasia to undergo Surrogacy, as she is not able to produce oocytes in absence of the uterus. The bench further stayed the amendment Para 1(d) in Form 2 of the Surrogacy (Regulation) Rules, 2022 only with respect to the present petition. The medical reports of the District Medical Board read, "...that she (the petitioner) has absent ovaries and absent uterus, hence she cannot produce her own eggs (oocytes)". It is to be noted that the bench awaited a medical report on whether the petitioner is in a position to produce oocytes or not, owing to her medical condition.
The petitioner-woman intended to achieve motherhood through gestational surrogacy within the legal framework in India, however the substitution of Clause 1(d) in Form 2 which is the Consent of the Surrogate Mother and Agreement for Surrogacy read with Rule 7 of the Surrogacy (Regulation) Rules, 2022 made under the Surrogacy (Regulation) Act, 2021 restricted her to do so. As per the amendment, a couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed.
Accordingly, a bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan observed, “…wife not being able to achieve parenthood owning to the ‘disability on account of an absence of uterus or repeatedly failed pregnancy, multiple pregnancies or an illness which makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening’, the justification for necessitating surrogacy are all related to the woman or the wife and do not refer to the male at all. Therefore, the whole scheme of the Act revolves upon the ‘disability of the woman to conceive and have a normal child and the medical indications necessitating gestational surrogacy’ in Rule 14 explains the various circumstances which would incapacitate a woman from having a normal pregnancy and having a normal child. In such circumstances, therefore, the intending couple would have to have a child through a donor oocyte because in any of those conditions it may not be possible for the woman to produce oocytes. Otherwise, the Rule 14A which has to be read as part of Section 2r cannot be given effect to all, having regard to the Scheme of the Act”.
While noting that the couple had already commenced the procedure for becoming parents before the amendment came into force i.e. March 14, 2023, the bench further observed, “Therefore, the amendment which is now impeding the intending couple from achieving parenthood through surrogacy, we find is prima facie contrary to what is intended under the main provisions of the Act. In the circumstances, the Amendment is stayed, i.e. Clause 1(d) of Form 2 read with Rule 7 of the Rules, in so far as the petitioner herein is concerned. It is needless to observe that if the petitioner otherwise fulfils all other conditions mentioned under the Act, she is entitled to achieve parenthood through surrogacy”.
Senior Advocate Sanjay Jain appeared for the petitioner and ASG Aishwarya Bhati appeared for the respondent.