The Hon’ble Bombay High Court noted that as in the present case, due to the medical condition of the wife, it was imperative for the petitioners to proceed to achieve parenthood by surrogacy, however, in doing so, the petitioners could not be foisted with the compliance of the impugned rules, namely, Rule 1(d)(I), as set out in the notification dated 14 March 2023 as the purpose of the Surrogacy act is to weed out unethical practices from Surrogacy and is a women-centric law.
In the light of the above discussion, the Court was of the clear opinion that if the protection as prayed for was not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023.
Brief Facts:
The Petitioners, who are husband and wife contended that they could not achieve parenthood due to serious medical issues suffered by the wife. When the Petitioners intended to take recourse to the procedure of surrogacy under the provisions of the Surrogacy (Regulation) Act, 2021 (‘the Surrogacy Act’) and the Rules framed thereunder, they were confronted with what was prescribed by the impugned notification dated 14th March 2023, issued by the Government of India, Ministry & Family Welfare.
By such notification issued in the exercise of powers conferred under Section 50 of the Surrogacy Act, the Central Government framed the following Rules to amend the Surrogacy (Regulation) Rules 2022 as contained in Form-2 under Rule 7, whereby amending existing para 1(d) (I), and made it compulsory that the couple undergoing surrogacy must have both gametes from the intending couple & donor gametes is not allowed. The petitioners are aggrieved by such condition as imposed by the impugned rules, and hence this petition.
Contentions of the Petitioners:
It was argued that prescribing such a condition in the Rules is illegal since such a condition would be violative of and/or incongruent to the provisions of the Surrogacy Act. Imposing such a condition would defeat the entire purpose, for which, the petitioners would intend parenthood by surrogacy. It was argued that it could not have been the intention of the legislation to achieve surrogacy inter alia by using genetically defective gametes or for other several medical reasons when it is not possible for the couple to use their gametes and in such circumstances, it is improbable that such conditions be imposed on the petitioners when to have a child by surrogacy is the only option available to the couple.
Observations of the Court:
It was noted that due to the medical condition of the wife, it was imperative for the petitioners to proceed to achieve parenthood by surrogacy, however, in doing so, the petitioners could not be foisted with the compliance of the impugned rules, namely, Rule 1(d)(I), as set out in the notification dated 14 March 2023 as the purpose of the Surrogacy act is to weed out unethical practices from Surrogacy and is a women-centric law.
In the light of the above discussion, the Court was of the clear opinion that if the protection as prayed for was not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023.
The challenge to the notification was pending for adjudication by the Hon’ble Supreme Court.
The decision of the Court:
The Hon’ble Bombay High Court ordered that the couple should be allowed to avail the service of surrogacy without having to comply with the notification dated 14 March 2023.
Case Title: XYZ and Another vs. Union of India and others.
Coram: Hon’ble Justice G.S. Kulkarni and Hon’ble Justice Frisdosh P. Pooniwalla.
Case No.: Writ Petition No. 10108 OF 2023.
Advocate for the petitioner: Adv. Mr. Dande.
Advocate for the respondent: Adv. Ms. Chavan
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