1. Challenge to amendment of Form 2, Surrogacy (Regulation) Rules, 2022, restricting donor oocytes for intending couples where the woman suffers from uterine aplasia. (Para 4 , 5 , 6 , 7 )
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2023 Supreme(SC) 1817
SUPREME COURT OF INDIA
B.V. NAGARATHNA, UJJAL BHUYAN, JJ.
Arun Muthuvel - Appellant
Versus
Union Of India & Ors. - Respondent
Writ Petition(S)(Civil) No(S).756/2022, W.P.(C) No. 931/2022 (X), W.P.(C) No. 1129/2022 (X), W.P.(C) No. 42/2023 (X), W.P.(C) No. 164/2023 (X), W.P.(C) No. 522/2023 (X), W.P.(C) No. 487/2023 (X), W.P.(C) No. 830/2023 (X)
Decided on : 09-10-2023
Advocates:
Advocate Appeared:
For the Appellant : Mr. Mayank Pandey, AOR Mr. Sanjay Jain, Sr. Adv. Mr. Nalin Tripathi, Adv. Mr. Yuvraj Sharma, Adv. Mr. Nishant Tripathi, Adv. Ms. Harshita Sukhija, Adv. Mr. Mrinmai Sagar, Adv. Ms. Neelam Singh, AOR Mr. Amit Pawan, Adv. Mr. Akshat Srivastava, AOR Mr. Abhay Pratap Singh, Adv. Ms. Mohini Priya, AOR Mr. Malak Manish Bhatt, AOR
For the Respondent: Ms. Aishwarya Bhati, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Rajat Nair, Adv. Mr. Ketan Paul, Adv. Mr. Mayank Pandey, Adv. Ms. Chitrangda Rashtravara, Adv. Ms. Ameyavikrama Thanvi , AOR Mr. Ivan, AOR
Advocate Appeared:
For the Appellant : Mr. Mayank Pandey, AOR Mr. Sanjay Jain, Sr. Adv. Mr. Nalin Tripathi, Adv. Mr. Yuvraj Sharma, Adv. Mr. Nishant Tripathi, Adv. Ms. Harshita Sukhija, Adv. Mr. Mrinmai Sagar, Adv. Ms. Neelam Singh, AOR Mr. Amit Pawan, Adv. Mr. Akshat Srivastava, AOR Mr. Abhay Pratap Singh, Adv. Ms. Mohini Priya, AOR Mr. Malak Manish Bhatt, AOR
For the Respondent: Ms. Aishwarya Bhati, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Rajat Nair, Adv. Mr. Ketan Paul, Adv. Mr. Mayank Pandey, Adv. Ms. Chitrangda Rashtravara, Adv. Ms. Ameyavikrama Thanvi , AOR Mr. Ivan, AOR
The court determines that the retrospective application of surrogacy rules conflicting with existing provisions recognizing disabilities is improper, necessitating medical certification for those affected.
Headnote:(A) Surrogacy (Regulation) Act, 2021 - Surrogacy (Regulation) Rules, 2022 - Amendment to consent form concerning gestational surrogacy eligibility - Petitioners with MRKH syndrome challenge retrospective application of amendment - Court finds substitution contrary to Rule 14(a) and requires medical certification for oocyte production - Concerns the right to biological motherhood through gestational surrogacy. (Paras 3, 4, 11, 12)
(B) Medical assessment - Court seeks medical opinion regarding petitioners' ability to produce oocytes as per MRKH diagnosis.
Findings of Court:
The court acknowledges the conflict between the amendment and existing rules, prioritizing the need for an expert assessment of the petitioners' medical status.
Issues: The key issues included the retrospective application of the new surrogacy rules and the compatibility with existing law recognizing disabilities affecting reproductive health.
Ratio Decidendi: The court emphasizes the need to maintain the integrity of legal provisions regarding surrogacy and the right of individuals with disabilities to seek motherhood, necessitating expert medical verification in this context.
Result: Proceedings adjourned with a requirement for medical evaluation.
Judgement Key Points
The eligibility for surrogacy under Rule 14(a) of the Surrogacy Rules (stating that a woman may opt for surrogacy if she has no uterus, missing uterus, abnormal uterus, or uterus surgically removed due to medical conditions) is directly quoted in (!) (!) .
This rule is referenced as the basis for eligibility (despite the amendment conflict) in (!) (!) (!) .
Legal Category Hierarchy
Table of Contents
2. Petitioners argue the amendment contradicts Rule 14(a) and is retrospective; the Union contends the restriction prevents exploitation and mandates using only intending couple's gametes. (Para 7 , 8 , 9 , 10 )
3. The court found that the substitution of paragraph 1(d) in Form 2 is prima facie contrary to the provisions of Rule 14(a) of the Surrogacy Rules. (Para 11 )
4. A regulatory form's requirements cannot prima facie override the substantive eligibility criteria established under the governing rules of the same Act. (Para 11 )
5. The court directed the District Medical Board to examine the petitioners and submit a report on their ability to produce oocytes. (Para 12 , 13 , 14 , 15 , 16 )
6. Does the restriction on donor oocytes in Form 2 conflict with Rule 14(a) of the Surrogacy Rules?
Yes, the court observed that the substitution in Form 2, which mandates gametes from the intending couple, is prima facie contrary to Rule 14(a), which allows surrogacy for women with missing or abnormal uteri. (Para 11 )
7. What is the legal implication of MRKH syndrome regarding gestational surrogacy under the Surrogacy Rules?
MRKH syndrome, characterized by uterine aplasia, makes a woman eligible for gestational surrogacy under Rule 14(a) of the Surrogacy Rules, as it constitutes a medical indication of a missing or abnormal uterus. (Para 4 , 6 )
8. How did the court address the conflict between the eligibility rule and the consent form requirements?
The court found the amendment to the consent form prima facie contrary to the eligibility rule and ordered a medical certification to determine the petitioners' actual capacity to produce oocytes before proceeding. (Para 11 , 12 )
ORDER :
1. This interim order concerns the petitioners/applicants in W.P(C)No.830/2023 aged about 38 years; I.A.No.138689/2023 in W.P.(C) No.487/2023 aged about 30 years; I.A.No.191808/2023 in W.P.(C) No.487/2023 aged 30 years; I.A.No.205941/2022 in W.P(C)No.756/2022 aged 28 years and applicant in I.A.No.78519/2023 in W.P(C)No.756/2022 aged 26 years.
2. This is having regard to the nature of the interim order we are passing in these matters which concerns only the petitioners who are stated to be having Mayer-Rokitansky- Kuster-Hauser (MRKH) syndrome.
3. For the sake of convenience, the prayers sought for by the petitioner ABC in W.P(C)No.830/2023 are extracted as under:
“A. Issue an appropriate writ/order/direction, to strike down GSR 179 (E) dt. 14.03.2023 being contrary to the objects and reasons of the statue and thus being contrary to the enactment itself.
B. Hold that GSR 179 (E) dt. 14.03.2023 under no circumstances could be applied retrospectively.
C. Issue a Writ in the nature of Mandamus or any other appropriate writ, order, direction directing the respondents to exempt the Petitioner and other similarly placed person from undergoing surrogacy procedure, who have already frozen their embryos/have started the procedure for surrogacy in terms of the Surrogacy (Regulations) Act, 2021, prior to 14.03.2023.
D. Pass such further order(s)/directions(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and the interest of justice.”
4. In the writ petitions or applications they have filed, it is stated that the petitioners, being married women, have a congenital disorder which is known as Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome, also referred to as Müllerian aplasia, characterized by aplasia of the uterus and upper part of the vagina of the female with normal secondary sex characteristics and a normal female karyotype (46, XX). It is a condition which is stated to affect the reproductive system of the female and is caused by abnormal development of the Müllerian ducts which are structures in the embryo that develop into uterus, fallopian tubes, cervix and the upper part of the vagina. It is stated that the MRKH syndrome involves absolute uterine factor infertility and the only option for the persons with such disability to achieve biological motherhood is through gestational surrogacy. The other option is uterus transplantation which is an impossibility in many cases.
5. Since the petitioners/applicants seek to achieve motherhood through gestational surrogacy within the legal framework in India, they have filed these writ petitions/applications seeking to assail substitution of paragraph 1(d) in Form 2 which is the Consent of the Surrogate Mother and Agreement for Surrogacy read with Rule 7 of the Surrogacy (Regulation) Rules, 2022 made under the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as the “Surrogacy Rules” and the “Surrogacy Act”, respectively for the sake of brevity).
6. For immediate reference, Rule 14(a) of the Surrogacy Rules and Rule 7 read with Form 2 which read as under could be extracted insofar as the relevant portions are concerned:
7. Consent of a surrogate mother. - The consent of a surrogate mother shall be as specified in Form 2.
X X X
“14. Medical indications necessitating gestational surrogacy.- A woman may opt for surrogacy if; -
(a) She has no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small uni cornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical condition such as gynecological cancer;”
X X X
| “FORM 2 [See rule 7] Consent of the Surrogate Mother and Agreement for Surrogacy | |
| 1. That I understand that the methods of treatment may include: However, by the impugned notification dated 14.03.2023, the aforesaid paragrap | |
