The Delhi High Court Tuesday sought the Centre's stand in a plea challenging a March 14 notification issued by the Union Ministry of Health and Family Welfare which bars the use of donor gametes for an intending couple looking for surrogacy. The health ministry notification brings an amendment to Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022. Form 2 pertains to "Consent of the Surrogate Mother and Agreement for Surrogacy". Previously, para 1(d) of the form stated that the methods of treatment may include, "fertilization of a donor oocyte by the sperm of the husband". After the amendment, para 1(d) has been changed to state that the "Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed". A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad issued notice on the plea and sought a response from the Centre and Delhi Government and listed the matter in August. The plea has been moved by a married couple, who have been medically assessed to be infertile due to the wife's medical conditions, which includes the inability to produce viable oocytes (eggs). The couple had an embryo fertilized which is currently cryogenically preserved. The couple had availed a donor egg which was fertilised in vitro using the sperm of the husband, the plea states. The couple was looking for a surrogate to carry the pregnancy, however, they were barred from availing surrogacy services due to the March 14 notification. The plea states that the amendment "effectively bars use of surrogacy services by infertile couples" unless both of them have the ability to generate gametes (which are an organism's reproductive cells). In their plea, the couple states this amendment creates "invidious discrimination" between similarly situated persons without disclosing any "intelligible criteria". "The only basis for denying the Petitioners surrogacy services is their inability of one of them to produce gametes, which is otherwise a medically indicated basis for infertility among couples," it says. "The amendment virtually renders the Assisted Reproductive Technology (Regulation) Act, 2021 otiose and is in conflict with the stated object of that Act eschews the concept of genetic purity of the child born out of ART Process and surrogacy," the plea claims. The plea states that the amendment bars the petitioners' right to life and privacy and renders the very human right of parenthood a punishable act, for inability to produce their own gametes. It further states that motherhood has been recognised as a facet of Article 21 of the constitution which the amendment violates. The plea states that the amendment has the potential of exposing genuinely infertile couples to criminal prosecution under the surrogacy act. Alternatively, the plea seeks a direction that the impugned notification is held "prospective in nature" since the couple has been issued a Medical Indication Certificate from Delhi State level medical board, department of family welfare, Delhi government prior to the amendment on March 14 and also have a fertilised embryo preserved for use through surrogacy.
