Insisting That Donor Egg Cannot Be Used For Gestational Surrogacy Is Prima Facie Against Surrogacy Rules: Supreme Court

The Supreme Court has observed that insisting that only the egg and the sperm of the intending couple can be used for gestational surrogacy is prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

A new amendment introduced in March 2023 to Form 2 read with Rule 7 of the Surrogacy Rules specifies that donor eggs cannot be used for gestational surrogacy of an intending couple.

The Court made this observation while hearing a batch of pleas filed by married women, suffering from a congenital disorder known as Mayer-Rokitansky-Kuster-Hauser (MRKH), who want to achieve biological motherhood through gestational surrogacy. MRKH syndrome causes absolute uterine factor infertility and the only way for a person suffering from such a condition to attain biological motherhood is through gestational surrogacy. This is because the petitioners are not able to produce eggs due to their medical condition.

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.

“Having regard to the challenge made to paragraph 1(d) in Form 2 namely, the substitution as referred to above, we find, prima facie, that this is a case where the said substitution is contrary to what is stipulated in Rule 14(a) of the Surrogacy Rules,” a bench of Justice B V Nagarathna and Justice Ujjal said.