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SC allows surrogacy, strikes down rule banning use of donor gametes

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SC allows surrogacy, strikes down rule banning use of donor gametes

  • The Supreme Court has protected the right of parenthood of a woman, suffering from a rare medical condition.
  • The court stayed the operation of a law which threatened to wreck her hopes to become a mother through surrogacy.

Right of Parenthood v Statute

  • The woman suffers from the Mayer Rokitansky Kuster Hauser (MRKH) syndrome.
  • Medical board records showed she has “absent ovaries and absent uterus, hence she cannot produce her own eggs/oocytes”.
  • The couple had begun the process of gestational surrogacy, through a donor, in 2022.
  • However, a government notification on March 14, 2023 amended the law, banning the use of donor gametes.
  • It said “intending couples” must use their own gametes for surrogacy.
  • The petition was filed in the Supreme Court challenging the amendment as a violation of a woman’s right to parenthood.

The Opinion of the Hon’ble Supreme Court

  • The Supreme Court is of the opinion that the amendment is not in consonance with main provisions of the Surrogacy Act.
  • The amendment is prima facie contrary to the main provisions of the Surrogacy Act both in form as well as in substance.
  • The Court is of the opinion that the amendment is a hurdle for the intending couple and prevents them from achieving parenthood through surrogacy.

The Point of View of Petitioner

  • The petitioner argued that the amended Paragraph 1(d) of the Surrogacy (Regulation) Rules, 2022, by ruling out the use of donor eggs had made it impossible for the couple to continue with the process of surrogacy in order to achieve parenthood.
  • The petitioner further argued that the 2023 amendment contradicted the Sections 2(r) and 4 of the Surrogacy Act, 2021 which recognised the situation when a medical condition would require a couple to opt for gestational surrogacy in order to become parents.
  • The petitioner cited that the Rule 14(a) of the Surrogacy Rules the medical or congenital conditions owing to which a woman could choose to become a mother through gestational surrogacy.
  • The medical or congenital conditions included “having no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small unicornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical condition such as gynaecological cancer”.

Woman’s Choice v Legal Hurdles

  • The Rule made it clear that the choice was solely that of the woman. He said his client had begun the surrogacy process months before the amendment, which cannot be implemented retrospectively.
  • The government countered that the process of surrogacy cannot be availed under the law unless the child was “genetically related” to the intended couple. This exempted the use of donor eggs.

The Order of the Court over Right of Women

  • The Court ordered that the law permitting gestational surrogacy was “woman-centric”.
  • The decision to have a surrogate child was entirely based on the woman’s inability to become a mother owing to her medical or congenital condition.
  • Such a condition included :
    • the “absence of a uterus
    • repeatedly failed pregnancies,
    • multiple pregnancies
    • an illness which makes it impossible for her to carry a pregnancy to term would make the pregnancy life-threatening”.

The Interpretations of the Court Over the Questions of Law

  • The amendment cannot contradict Rule 14(a).
  • The rule specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy.
  • Addressing the government’s contention that the surrogate child should be “genetically related” to the couple, the court pointed out that the child would be related to the husband.
  • “In this regard, it may be noted that the expression ‘genetically’ related to the intending couple has to be read as being related to the husband when Rule 14(a) applies,” the court interpreted.

Prelims Takeaway

  • The Surrogacy Law in India
  • Assisted Reproductive Technology

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