Delhi HC seeks Centre, state govt stand on plea challenging notification amending surrogacy rules

The Delhi High Court on Tuesday sought a response from the Centre and other respondents on a plea moved by a married couple of doctors, challenging the notification dated March 14, 2023, amending surrogacy rules.
The notification bars “infertile couples” access to legally regulated surrogacy services unless both of them generate gametes. Thus, if the husband or the wife is not able to produce Sperm or Egg (Oocyte), they are disentitled to avail the facilities under the Surrogacy Act, stated the plea.
The bench of Justice Satish Chander Sharma and Justice Subramonium Prasad on Tuesday issued notice to the Union of India through the Ministry of Health and Family Welfare, the Government of NCT of Delhi and a Private clinic of Delhi.
According to the plea, the Petitioners are a married Indian couple, who have been medically assessed to be infertile on account of various medical conditions of the Petitioner’s wife, which include among other things, the inability to produce viable Oocytes (Egg).
The plea stated that the petitioner’s wife on account of several medical issues has been assessed by the statutorily constituted Board to be infertile due to her inability to produce Oocytes, or incapable/at high risk for gestational pregnancy. They were as such certified for availing Surrogacy procedures as an advanced treatment of infertility.
Accordingly, the Petitioners had an embryo fertilised, which is currently cryogenically preserved at a private clinic. The Petitioners availed a donor Oocyte, which was fertilised in vitro using the Sperm of the Petitioner, husband.
According to the plea, the Petitioners couple were looking for a surrogate to carry the pregnancy to term when the Central Government made an amendment to Form 2 under Rule 7 of the Surrogacy Rules.
The amendment effectively bars the use of Surrogacy Services by infertile couples unless both of them have the ability to generate gametes. As a result, the Petitioners have been deprived of their right to Parenthood for all times to come and their embryo has become “legally unviable” for the purpose of achieving parenthood.
The impugned amendment violates the basic rights of a married infertile couple to parenthood by denying them the use of legally and medically regulated procedures and services.
The impugned notification does not disclose any rational justification, basis or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing Surrogacy services. This amendment is ex facie a colourable exercise of power, is completely arbitrary, irrational, illegal and fails the test of constitutionality, plea read.