The court affirmed that the amendment to the Surrogacy (Regulation) Rules, 2022, which restricts donor gametes, is inapplicable to petitioners with medical conditions, preserving their right to surrogacy under the Surrogacy Act.

ORDER :

“All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has for and sacrificial, though; now again, science has forced us to alter our perspective of motherhood”.- ROBERT BROWN.

Science or scientific development never ceases to surprise us; it always outmaneuvers us. We humans, therefore, should either change or become immaterial. Law is no exception. It is now the turn of law to appreciate, the variance in the concept of the divine duty, of motherhood metamorphosing, into split motherhood, albeit, in certain circumstances. The turn to appreciate this dichotomy forms the fulcrum of the issue in the lis and becomes the kernel of the conundrum.

2. Conglomeration of these cases raise a common challenge. The petitioners, in all these cases, seek to challenge the amendment brought about to the Surrogacy (Regulation) Rules, 2022, in terms of the notification dated 14-03-2023 issued by the Union of India, with particular challenge to the amendment to clause (1)(d) of Form No.2 of the Surrogacy Regulations. Therefore, they are considered together by this common order. I deem it appropriate to notice the facts petition by petition.

3. Shorn of unnecessary details, facts in brief, germane, are as follows:

W.P.No.15824 of 2023:

The petitioners are again husband and wife who get married in the year 2007. Being desirous of expanding their family, tired to conceive naturally, but have been unsuccessful for the last 16 years since the 1st petitioner is having bulky uterus with thick endometrium which hindered conceiving naturally. Therefore, are left with the only option surrogacy. Since, the notification prohibits it, they call in question the notification, as in the companion petitions.

W.P.No.22462 of 2023:

This petition is taken up as the lead petition. The petitioners get married on 26-05-2014. The 1st petitioner desirous of motherhood tries to conceive a child naturally and has been unsuccessful for the last 9 years. It is the averment in the petition that several unsuccessful procedures between the years 2019 and 2021 using her own eggs and her husband’s sperm resulted in successful pregnancy, but suffered from early miscarriage and had to undergo 3 laparoscopic surgeries to her uterus. It is averred that despite considerable efforts, her uterus still harbors multiple uterine fibroids that intrude upon the uterine cavity. All efforts have been in vain, the risk of miscarriage looms large on every ensuing pregnancy is the medical opinion. Therefore, it is a case where the 1st petitioner cannot naturally conceive. Left with no choice the viable option left was surrogacy, but the impugned notification comes in the way of the intending couple, in as much as it prohibits using of a donor egg during surrogacy.

W.P.No.20476 of 2023:

The petitioners get married on 16-11-2016. Efforts of 7 years have led the couple nowhere for expansion of the family due to the 1st petitioner being a patient of “CKD” – Chronic Kidney Disease. Therefore, the grave medical condition has left the couple with no choice, but to opt for surrogacy. The option is taken away by the impugned notification.

W.P.No.20492 of 2023:

The petitioners are husband and wife having got married in the year 2018 and all the efforts of expansion of family have been in vain due to poor heart condition of the 1st petitioner. Therefore, the only method of becoming a mother was through surrogacy, which also is now rendered impossible due to the impugned notification. The impossibility is what has driven the petitioners to this Court.

W.P.No.22468 of 2023:

The petitioners are a couple who have got married on 12-10-2017 and have been unsuccessful for the last 6 years to expand the family on account of poor ovarian reserve and low quality of eggs. All methods medically av