The court affirmed that amendments to surrogacy regulations cannot have retrospective effect, especially when they impede ongoing processes and must align with existing medical regulations.

ORDER :

W.P.(C) No. 830/2023:

1. Pursuant to our order and direction dated 09.10.2023, the Office of the District Medical & Health Officer (Chairperson District Medical Board), Medchal-Malkajgiri-District has submitted its report dated 11.10.2023 after examining the petitioner herein.

2. On perusal of the said report, it would be useful to extract the following portions of the Report:

“Pursuant to order dt 09.10.2023, a request was received in our office seeking medical opinion, hence District Medical Board has examined the available medical records of Mrs. ABC and it is seen that she is a case of Type 2 -”Mayer Rokitansky Kuster Howser(MRKH) Syndrome”

We have perused the Pelvic ultrasound report from Lucid Medical Diagnostics dated 29/4/2022 which states that both uterus as well as Ovaries are not visualised. We have also relied on the 3T-MRI whole Abdomen report of Mrs. ABC dated 20/2/23 which states that “uterus is not visualised”, “Both Ovaries are not visualised.”

We have also examined the documents submitted by Mrs. ABC in the process of applying and obtaining various permissions for ART and Surrogacy and after careful examination of all documents it has lead us to opine that since Mrs. ABC has absent Ovaries and absent Uterus, hence she cannot produce her own Eggs/Oocytes.”

3. In the above backdrop, we have heard learned Senior Counsel Mr. Sanjay Jain for the petitioner Mrs. ABC and learned A.S.G. Ms. Aishwarya Bhati for the respondents.

4. During the course of submissions, our attention was drawn to Section 2 (r), 2(zd), (zg) and Sections 4 (ii)(a) and 4(iii)(a)(I) of the Surrogacy (Regulation) Act, 2021 (for short, “Surrogacy Act”) as well as Rule 14(a) read with Rule 7 as well as the portion of Form 2, namely Consent of the Surrogate Mother and Agreement for Surrogacy and Paragraph 1(d) thereof of the Surrogacy (Regulation) Rules, 2022 (for short, “Surrogacy Rules”). For the sake of immediate reference the same are extracted as under:

“2.(1) In this Act, unless the context otherwise requires,-

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(r) “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;

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(zd) “surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over couple after the birth; such child to the intending

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(zg) “surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4 ;

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4. Regulation of surrogacy and surrogacy procedures.— On and from the date of commencement of this Act, —

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(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:

(a) when an intending couple has a medical indication necessitating gestational surrogacy: Provided that a couple of Indian origin or an intending woman who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.

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(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:—

(a) the intending couple is in possession of a certificate of essentiality issued by the a