The court determines that the retrospective application of surrogacy rules conflicting with existing provisions recognizing disabilities is improper, necessitating medical certification for those affected.

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-s