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Clear stand on surrogacy concerns by April 15, SC tells Centre
SC appreciated the Centre for changing the law by allowing any one of the intending couple to undergo surrogacy using donor gametes
New Delhi The Supreme Court on Friday directed the Centre to clear its stand by April 15 on the concerns of single women seeking surrogacy, and concerns of intending couples who were overage, under a slew of amendments to the law governing surrogacy and assisted reproductive technology (ART), even as it appreciated the Centre for changing the law by allowing any one of the intending couple to undergo surrogacy using donor gametes.
The top court, on October 18 last year, noted that the Surrogacy (Regulation) Rules, 2022, in paragraph 1(d) of Form 2 was coming in the way of couples wanting to have children as the law required both the sperm and egg to be of the intending couple.
On a nudge by the Court, the Centre constituted an expert committee and came out with the amendment, which said: “In case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete then surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple.”
The rest of this rule was left unchanged: “...single woman (widow or divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure.”
On Friday, a bench of justices BV Nagarathna and Augustine George Masih noted the government’s move. “We appreciate the Union of India has taken our concern in the right spirit,” it said, referring to the gazette notification published by the Centre on February 21.
Additional solicitor general (ASG) Aishwarya Bhati, appearing for the Centre, showed a copy of the notification to the Court and requested that all pending matters before the Court which challenged this rule could be disposed of.
Going through the notification, the bench remarked, “We hope there is no situation where both husband and wife will need donor gametes,” adding that this may be very rare.
The bench then disposed of pending applications filed by 15 women on this issue and said, “We have already held that any couple could approach the high court if they suffer with a medical condition and get seek an order for examination by the district medical board.”
The top court had permitted 12 out of the 15 women to proceed with surrogacy as the medical board found them incapable of conceiving due to diverse reasons.
The court, however, noted that there were other petitions pending before it which challenged several other provisions of the Surrogacy (Regulation) Act, Surrogacy Rules issued in March last year, and the ART (Regulation) Act.
Advocate Mohini Priya appearing for IVF specialist Arun Muthuvel pointed out that the law on surrogacy and ART is discriminatory against men and women based on their age, marital status, and sexual orientation. She said in her petition that the Surrogacy Act prescribed arbitrary age limits on a woman who was an “intending couple”, and kept out same-sex couples, members of the LGBTQ community, single women neither widowed nor divorced, single divorced women or widows less than the age of 35 or more than 45, single men, and couples suffering from secondary infertility, among others.
On these issues, the court asked the Centre to file its response and posted the matter for hearing on April 15.
