7 Feb 2024 5:04 AM GMT
In a significant development, the Supreme Court this week directed new applicants seeking permission to undergo surrogacy to approach the jurisdictional high courts. The Court clarified that the pendency of the petitions challenging the provisions of the surrogacy law in the Supreme Court will not bar the High Courts from entertaining applications filed by individuals seeking permission to undergo surrogacy.
A bench of Justices BV Nagarathna and Augustine George Masih passed this direction, noting that a barrage of applications has been pouring in from all across the country for permission to opt for surrogacy despite statutory restraints. The applications were filed after the Supreme Court in October 2023 passed an interim order granting permission for a woman diagnosed with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome to pursue surrogacy utilising a donor egg, staying the implementation of a recent amendment to the Surrogacy Rules, which had barred the use of donor eggs for gestational surrogacy by intending couples.
Accordingly, the court redirected the latest batch of applications to their respective jurisdictional high courts, hoping that 'similarly-placed' litigants would follow suit.
The judge also acknowledged that an umbrella order, not specific to any one or group of litigants, prohibiting future applicants from approaching it for such permission, could not be passed. "We'll have to send the women who have come here now to the high court so that other applicants may follow suit," she said.
Accordingly, disposing of the latest applications, the bench pronounced -
In February last year, the union government, in consultation with the National Assisted Reproductive Technology and Surrogacy Board, issued three important clarifications regarding the extant regime on surrogacy and assisted reproductive technologies, after the top court instructed it to make a representation to the board to consider the prayers in the batch of cases and file a suitable response. Afterwards, a bench headed by now-retired Justice Ajay Rastogi directed the Centre to immediately give effect to the three clarifications, while urging the national board to expeditiously 'take a call' on those grievances that had not yet been examined by it. The union government's experts are currently examining the various issues raised in the pending legal challenges.
In the meantime, the Supreme Court in October
The amendment in question, introduced in March 2023 to Form 2 of the Surrogacy Rules in conjunction with Rule 7, explicitly prohibits the utilisation of donor eggs for gestational surrogacy involving intending couples. Petitioners have contested its compatibility with Rule 14(a) of the Surrogacy (Regulation) Rules, 2022, which permits gestational surrogacy for women with no uterus or an abnormal uterus. They have argued that the amendment's insistence on genetic linkage between the child and intending couple through gametes disregards the circumstances of individuals facing infertility challenges due to medical conditions.
Arun Muthuvel v. Union of India | Writ Petition (Civil) No. 756 of 2022 and connected cases