HC allows two city couples to undergo surrogacy using donor gametes

MUMBAI: The Bombay high court on Friday granted permission to two city couples to pursue surrogacy using donor gametes, which is a process of using eggs, sperm, or embryos from someone else to help an intended parent(s) have a child, overriding a notification from the Ministry of Health and Family Welfare issued on March 14, 2023.

This notification had initially disallowed surrogacy involving donor gametes, stipulating that single women must use their own eggs for the procedure.

The decision was rendered by a bench comprising of justice G S Kulkarni and Firdosh P Pooniwalla, who partially allowed the petitions. The court considered a previous order from October 2023 by the apex court, which had stayed the implementation of the notification for similar couples, thereby permitting them to undergo surrogacy with donor gametes.

Additionally, the court also considered a November 2023 ruling from the Karnataka high court that facilitated over 10 couples to pursue surrogacy using donor gametes.

The challenge to the central government’s notification stemmed from two city couples, who contested the amendment to the Surrogacy Regulation, which mandated that both gametes must originate from the intending couple, thus excluding the use of donor gametes. The petition argued that this amendment severely restricted access to surrogacy, as many couples resort to this option after exhausting other fertility treatments.

Moreover, the petition pointed out that neither the Surrogacy (Regulation) Act nor its rules explicitly prohibited the use of donor gametes. It highlighted a clause in Form 2 under Rule 7, affirming the consent of the surrogate mother, which originally permitted the implantation of embryos fertilized from donor eggs and the intending father’s sperm. The petition underscored the plight of couples who, due to medical conditions such as chromosomal defects or advanced age affecting egg quality, were unable to conceive naturally or with their own gametes.

The petition further argued that the implementation of the notification was unjust, as it deprived women of their constitutional right to access assisted reproductive techniques. It criticised the notification for endangering the health of intending women and surrogate mothers by subjecting them to unnecessary hormonal treatments.

In response, the Ministry raised concerns about the emotional bond between parents and children born from donor gametes, suggesting that such children might be neglected due to the lack of a biological connection.

During the hearing, it was noted that since the implementation of the notification, no surrogacy procedures had taken place in the city. The government represented by Additional Government Pleader Jyoti Chavan, while acknowledging the court’s previous directives to establish Surrogacy boards, insisted that at least one gamete should be from the intending couple to distinguish surrogacy from adoption.

Considering these arguments and the unique circumstances, the court allowed the couples to pursue surrogacy using donor gametes while preserving their challenge against the notification.