In rare move, SC stays surrogacy rules for 7 couples, allows them to use donor eggs

New Delhi: The Supreme Court Tuesday stayed a contentious provision of the Surrogacy (Regulation) Rules, 2022, for seven couples, allowing them to accept donor eggs to bear a surrogate child.

A two-judge bench led by Justice B.V. Nagarathna made the exception for the couples after it received medical reports in each case confirming that the women were unable to produce their own eggs due to underlying medical conditions.

The order brought relief to the couples as they had initiated the steps for surrogacy, but could not complete it due to a sudden amendment brought about in the rules in March last year. 

These couples had opted for surrogacy based on their respective doctor’s medical advice.  

The amendment in the surrogacy rules, notified on 14 March 2023, disallowed donor gametes for surrogacy. The amended rule says “couple undergoing surrogacy must have both gamete from the intending couple and donor gametes is not allowed”.

However, the new rules permit single women — only widows or divorcees — to use their own eggs and donor sperm to avail of surrogacy.

The couples had moved the top court questioning the rationale behind the amendment, saying it is arbitrary, done in a “capricious manner”, and negates the objective of the parent law, Surrogacy (Regulation) Act, 2021.

They sought permission from the court to go ahead with surrogacy, on account of the women’s medical conditions. 

The couples had obtained the necessary certificates required under the Surrogacy (Regulation) Act, 2021.

Since the procedure began before the surrogacy regulation was modified, the couples argued that they would not fall within the ambit of the new rules.

Speaking to ThePrint, the couples’ advocate, Priya Mohini, said: “Since the rules fix an upper age limit for women to avail surrogacy, which is 50 years, we requested the bench to decide the couples’ application for permission soon because any delay would have lessened their chance of begetting a child.”

The bench, also comprising Justice Sanjay Karol, Tuesday made the exception to stay Rule 7 of the surrogacy regulations after opinions from the respective district medical boards of the areas where the couples reside confirmed the underlying medical conditions. 

The opinions were sent in response to the court referring the cases to these boards.

All-out stay on the cards?

During the hearing Tuesday, the bench also indicated that it might stay the challenged rule to enable similar couples to go in for surrogacy. 

Justice Karol was of the view that the relief given to the couples should not be limited to those who can afford to come to the Supreme Court.

“Why should this (relief) be available to the affluent body. Everybody cannot approach the court,”  the judge said. 

Additional Solicitor General Aishwarya Bhatti, appearing for the Centre, told the bench that the national board constituted under the surrogacy Act to develop a framework for surrogacy is looking into the aspect. 

She said she had made a personal representation to the government to reconsider the said rule.

The bench took recourse of Rule 14 to permit the seven couples to go for surrogacy. Rule 14 underlines the situations in which a couple can opt for surrogacy, with severe medical conditions being one of them.

With regard to five more cases, the bench fixed 5 February as the date of hearing. Three of them were referred to the medical boards concerned and, in the remaining two, reports from the boards are still awaited.

The couples had filed their application to allow them to use donor eggs in a pending matter wherein a challenge has been raised to the Surrogacy Act, 2021, on multiple grounds. 

The petitions have questioned the parent law for several reasons such as prohibition on commercial surrogacy, and limiting even altruistic surrogacy to married couples, or women who are judicially separated or have lost their spouse.

The sudden amendment in the surrogacy regulations was made in March 2023 following a query from the court, which asked the Centre to clarify whether a surrogate mother should be biologically related to the intending couple.

While clarifying that a surrogate mother need not be genetically related, the Centre, however, said that the child should be. An affidavit clearing this stand was filed in the court on 3 May 2023, after the amendment was made to the surrogacy rules.

According to the couples who have questioned the amendment, the change was “merely an afterthought based upon the biases of a few members of the national board, devoid of any reasoning or strong determining principles”.

(Edited by Sunanda Ranjan)