Bombay High Court: A petition was filed by a married couple, encountering infertility issues due to the wife’s medical condition, VHL syndrome, opting for surrogacy as the only viable path to parenthood challenging a government notification imposing restrictive conditions, including the prohibition of donor gametes. A division bench of G S Kulkarni and Firdosh P Pooniwalla, JJ., granted exemption from the impugned notification stipulation, i.e., to pursue surrogacy without adherence to donor gamete restrictions.
The husband and wife filed the present petition where the wife is suffering from genetic abnormalities and wants child through surrogacy, challenging the notification dated 14-03-2023, issued by the Government of India, Ministry & Family Welfare by which Surrogacy (Regulation) Rules 2022 was framed mandating that couples undergoing surrogacy must have both gametes from the intending couple and donor gametes was not allowed. The impugned rules in paragraph 1(d)(I) hence prohibit donor gametes. The petitioners are aggrieved by such conditions as imposed by the impugned rules.
The petitioners’ counsel argued that the impugned notification unfairly hindered their right to parenthood and contradicted the Surrogacy Act’s intentions. Citing medical evidence, they emphasized the necessity of using donor gametes given the wife’s genetic condition. The government’s counsel defended the notification’s legality but acknowledged the observations made by the Supreme Court in similar cases.
The Court noted that the wife was diagnosed as a known case of Von Hippel-Lindau Syndrome (VHL). The wife’s medical condition is described as a rare medical condition, which is a genetic abnormality with a high chance of passing on the rare medical condition to the fetus, if the wife is to carry out pregnancy. It is imperative for the petitioners to proceed to achieve parenthood by surrogacy, however, in doing so, the petitioners cannot be foisted with the compliance of the impugned rules, namely, Rule 1(d)(I), as set out in the notification dated 14-03-2023.
The Court further noted that reproductive health is a facet of personal liberty under Article 21 of the Constitution of India. However, when such right is required to be exercised by taking recourse to the procedure of Surrogacy, the Parliament has regulated the same by enactment of the Surrogacy Act. The Surrogacy Act makes provisions to regulate surrogacy clinics by prescribing strict conditions regarding them and the surrogacy procedures. The statutory scheme under the Surrogacy Act read with the Rules prescribes a complete code on all matters governing surrogacy. It is clear that the intention of the legislation is to regulate surrogacy as also seen from the Statement of object and reasons leading to the enactment of the Surrogacy Act, which is to weed out incidents of unethical practices, exploitation of surrogate mother, abandonment of children born out of surrogacy and import of human embryos and gametes, which had led to widespread condemnation of commercial surrogacy in India.
In Arun Muthuvel v. Union of India, Writ Petition (Civil) No. 756 of 2022, the Supreme Court observed that when an intending woman avails of surrogacy, naturally she would have to use her own oocytes or eggs and donor’s sperm and conversely, when the woman in the intending couple is unable to produce oocytes or eggs, then donor oocytes or eggs are necessarily required to be made use of.
The Court held that if the protection was not granted to the petitioners, it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14-03-2023. The challenge to the impugned notification dated 14-03-2023 is kept open as the same is subject matter of consideration before the Supreme Court.
[XYZ v Union of India, 2024 SCC OnLine Bom 486, decided on 09-02-2024]
Advocates who appeared in this case :
Mr. Tejesh Dande with Mr. Vishal Navale, Mr. Bharat Gadhavi, Ms. Trusha Shah, Mr. Vikrant Khare,Mr. Pratik Sabrad, Mr. Chinmay Deshpande, Mr. Sarvesh Deshpande & Ms. Janaki Patil i/b. Tejesh Dande & Associates, for the Petitioners.
Mr. Y. R. Mishra with Ms. Anusha P. Amin, for Respondent No.1-UOI.
Mrs. Jyoti Chavan a/w. Mr. Sachin H. Kankal. AGP for Respondent No.2 in WP/10108/2023.
Mrs. Jyoti Chavan, Addl. G. P. for State in WPL/22674/2023
Mr. Rishikesh M. Pethe for Respondents in WPL/22674/2023
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