Delhi High Court: Petitioners before this Court were intending couples availing surrogacy services under the Surrogacy (Regulation) Act, 2021 (‘Surrogacy Act’), whose long-anticipated surrogacy procedures had been abruptly halted on account of the Notification No. 179(E) dated 14-03-2023, issued by the Ministry of Health and Family Welfare (‘Impugned Notification’), by which the use of donor gametes in surrogacy procedures was disallowed by amending Paragraph 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022 (‘Surrogacy Rules’).
The Division Bench of Satish Chandra Sharma, C.J., and Sanjeev Narula, J., held that prima facie, the Impugned Notification violated the basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures and services. Further, the Impugned Notification did not disclose any rational justification, basis, or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing Surrogacy services. Further, the Court opined that petitioners possessed a vested and constitutionally protected right to parenthood and the amendment could not be allowed to retroactively render their legally fertilized embryo unviable.
Background
Petitioners contend that the Impugned Notification was a colourable exercise of power since it seeks to subversively amend the Surrogacy Act through an amendment of the Consent Form appended to Rule 7 of the Surrogacy Rules. It was also argued that the Impugned Notification gives effect to an invidious discrimination between similarly situated infertile couples incapable of carrying gestational pregnancy, by differentiating those couples where both partners could produce gametes from those where either/both could not, without disclosing any intelligible basis for such differential treatment.
Petitioners further submitted that an amendment of this nature was stated to be in conflict with the stated object of the Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART Act’) and the Impugned Notification violated petitioners’ right to life and privacy, as it contravened the right to reproductive autonomy and parenthood by punishing petitioners, and those similarly placed, for inability of either partner to produce their own gametes, which was otherwise a medically indicated basis for infertility.
Respondents submitted that the decision to disallow the use of donor gametes was taken after due consideration by experts of the National Assisted Reproductive Technology and Surrogacy Board (‘National Board’). The reasons for the same were two-fold, firstly, the Surrogacy Act itself prescribed that the child must be genetically related to both parents; and secondly, a child which was not biologically related to the couple would risk being rejected and abandoned by their parents.
Analysis, Law, and Decision
The Court observed that original clause Paragraph 1(d) of Form 2 under Rule 7 allowed for fertilization of a donor oocyte (egg) by the sperm of the husband. Thus, couples facing infertility issues, where the wife was unable to produce viable oocytes, could use donor eggs to fuse with the sperm of the husband, and the gestational pregnancy would be carried to term by the surrogate mother assisted by medical technologies recognized under the ART Act. The Court also observed that the Impugned Notification introduced a significant change in the regulatory regime for surrogacy by expressly prohibiting the use of donor gametes in surrogacy procedures for couples as well as single women. Thus, it was now mandatory for both the egg and sperm to originate from the intending couple undergoing surrogacy, and a similarly placed infertile couple would be disentitled from availing surrogacy services.
The Court noted that the definition of “infertility” under Section 2(j) of the ART Act meant “the inability to conceive after one year of unprotected coitus or other proven medical condition preventing a couple from conception”. The Court opined that this definition confined the determination of infertility solely to medical parameters and precludes any arbitrary basis for its assessment. It was thus essential to harmonize both the Surrogacy Act and ART Act in a manner that mitigated any potential conflicts between the law and established medical science. Thus, the Court held that prima facie, the amendment to Form 2 was contradictory to the core principles of the two acts and their specific provisions.
The Court opined that “the sole basis for denying surrogacy services to petitioners was the inability of one of them to produce gametes, which was on account of a medical condition recognized for infertility among couples. This amendment effectively rendered the ART Act otiose and engenders a fundamental conflict with the Surrogacy Act’s stated objectives”. The Court further opined that “the ART Act deliberately renounced the concept of ‘genetic purity’ by providing that a child born out of assisted reproductive technology procedures would be deemed as a biological child and entitled to all rights available to a ‘natural’ child. Moreover, a consent form executed by the surrogate mother could not surreptitiously alter the rights to parenthood of an intending couple as granted under the Surrogacy Act to parenthood. Furthermore, the amendment had the effect of exposing couples who have commenced surrogacy procedures under the old regime to criminal prosecution by virtue of Section 43 of the Surrogacy Act, raising significant legal and ethical concerns”.
The Court held that prima facie, the Impugned Notification violated the basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures and services. Further, the Impugned Notification did not disclose any rational justification, basis, or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing Surrogacy services.
The Court opined that the Impugned Notification must logically be held to be prospective in its application as petitioners had already secured the requisite Certificate of Medical Indication, as mandated under Section 4(iii)(a)(I) of the Surrogacy Act, from the Delhi State Level Medical Board, Department of Family Welfare, Government of Delhi, prior to the amendment taking effect. Further, the process of embryo generation was initiated prior to the Impugned Notification being issued and moreover, petitioners had a cryogenically preserved fertilized embryo earmarked for surrogacy use, predating the amendment. Thus, the Court opined that petitioners possessed a vested and constitutionally protected right to parenthood and the amendment could not be allowed to retroactively render their legally fertilized embryo unviable.
Thus, the Court permitted petitioners to resume the process for gestational surrogacy using their preserved embryos, which were generated using donor oocytes fertilized by the husbands’ sperms prior to the issuance of the Impugned Notification. Further, respondents were directed to facilitate the same in accordance with the previously existing regime, and it was made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother.
The matter would next be listed on 15-12-2023.
[Ravikant Chauhan v. Union of India, 2023 SCC OnLine Del 6837, Order dated 09-10-2023]
Advocates who appeared in this case :
For the Petitioners: Naveen R. Nath, Senior Advocate; Saumya Tandon, Siddarth Agarwal, Anirudh Agarwal, Arjun Basra, Kavita Nailwal, Disha Gupta, S.K. Khatri, Sachin Kumar, Advocates
For the Respondents: Chetan Sharma, ASG; Apoorv Kurup, Arunima Dwivedi, CGSC; Santosh Kr. Tripathi, SC (Civil); Avshreya Pratap, GP; Gauri Goburdhun, Akhil Hasija, Archana Surve, Avshreya Pratap Singh Rudy, Amit Gupta, Prashansa Sharma, Rishabh Srivastava, Shiven Varma, Pinky Pawar, Aakash Pathak, Advocates
