Infertile Couples Excluded From Opting For Surrogacy: Plea In Bombay High Court Challenges Notification Barring Use Of Donor Gametes

A writ petition before Bombay High Court challenges an amendment to the surrogate mother’s consent form under the Surrogacy Rules, 2022, which prevents couples from availing surrogacy using donor gametes. “…the principal reasons any intending couple or single woman tend to opt for surrogacy are infertility by birth or otherwise, various failed attempts through IVF procedures and advanced age due to various factors of life…Enforcing the impugned amendment would wipe out the hopes such persons of achieving pregnancy and becoming parents which is an integral part of life”, the petition contends. The amended Clause 1 reads – “ Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed; Single woman undergoing Surrogacy must use self eggs and donor sperms to avail surrogacy procedure.” According to the petition, this amendment defeats the purpose of the Surrogacy Act, 2021 which is an enabling statute for couples as well as single women who cannot bear a child on their own. “…in absence of any logical or legal reasoning by introducing any provision to that effect in the Surrogacy Act or Rules, the impugned amendment is ultra vires to the Articles 14, 19 and 21 of the Constitution of India” Therefore, the petitioners have sought a writ of certiorari or any other appropriate writ quashing the impugned notification issued by the Department of Health Research, Ministry of Health and Family Welfare.