The Karnataka High Court has allowed a batch of petitions and permitted thirteen couples to opt for surrogacy using donor gametes (a person who provides sperm or oocyte). The bench said the new amendment to the Surrogacy Rules which prohibits the use of donor eggs for gestational surrogacy of an intending couple can be diluted on a case to case basis.
Justice M Nagaprasanna however refrained from examining the validity of the amendment, stating that the issue is pending before the Supreme Court.
The petitioners had challenged the amendment dated 14.03.2023 made to Form 2 under Rule 7 of the Surrogacy Rules, which is the form for Consent of the Surrogate Mother and Agreement for Surrogacy.
The amendment substituted paragraph 1(d) in Form 2 to ensure that a couple undergoing surrogacy cannot have donor gametes and both the male and female gamete must come from the intending couple.
Court said the situation that has now emerged is- what the Act recognizes, Rule permits, a Form appended to the Rule “washes it away”. Court said this restriction has to be diluted where the medical condition of the intending couple demands. It observed that Rule 14, which deals with Medical indications necessitating gestational surrogacy, “is not nebulous, it does contain all the conditions – medical conditions that would permit a woman to opt for gestational surrogacy. Therefore, the Act recognizes who is an intending couple to mean, any medical indication necessitating gestational surrogacy. Though medical condition is not defined under the Act, Rule 14 makes it clear qua the conditions that would inure to the benefit of a woman.