IMPORTANT POINT
The impugned rules were found to be contrary to the Surrogacy Act and violated the petitioners' rights under the Constitution of India, leading to the court's decision to allow the petitioners to proceed with surrogacy without being bound by the impugned conditions.

JUDGMENT :

G. S. Kulkarni, J.

Writ Petition No. 10108 OF 2023

1. Rule. Returnable forthwith. Respondents waives service. By consent of the parties, heard finally.

2. The Petitioners, who are husband and wife got married on 29th April 2013. The Petitioners contend that they could not achieve parenthood due to serious medical issues suffered by the wife. Between the period of 2011 to 2023, the wife underwent surgeries. Confronted with several ailments arising from genetic abnormalities, the petitioners were advised that it would not be possible for the wife to bear a child in the natural course and the only option for them, was to have a child by surrogacy.

3. When the Petitioners intended to take recourse to the procedure of surrogacy under the provisions of the Surrogacy (Regulation) Act, 2021 ( for short “the Surrogacy Act”) and under the Rules framed thereunder, they were confronted with what was prescribed by the impugned notification dated 14th March 2023, issued by the Government of India, Ministry & Family Welfare. By such notification issued in exercise of powers conferred under Section 50 of the Surrogacy Act, the Central Government framed the following Rules to amend the Surrogacy (Regulation) Rules 2022 as contained in Form-2 under Rule 7, whereby amending existing para 1(d) (I), a new stipulation as contained in Rule 1(d)(I) & (II) came to be prescribed. The said notification prescribing the amending Rules reads thus:

“G.S.R. 179(E). - In exercise of the powers conferred by section 50 of the Surrogacy (Regulation) Act, 2021 (47 of 2021), the Central Government hereby makes the following rules, further to amend the Surrogacy (Regulation) Rules, 2022, namely :-

1. (1) These rules may be called the Surrogacy (Regulation) Amendment Rules, 2023.

(2) They shall come into force on the date of their publication in Official Gazette.

2. In Form 2 under rule 7 of the Surrogacy (Regulation) Rules, 2022, the existing Para 1(d) stands omitted and shall be substituted as under:

1.(d)(I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed.

(II) Single woman (widow/divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.”

(emphasis supplied)

The impugned rules in paragraph 1(d)(I) hence prohibit donor gametes. The petitioners are aggrieved by such condition as imposed by the impugned rules.

4. The petitioners contend that prescribing of such condition in the Rules is illegal inasmuch as such condition would be violative of and/or in-congruent to the provisions of the Surrogacy Act. According to the Petitioners, imposing of such condition would in fact defeat the entire purpose, for which, the petitioners would intend parenthood by surrogacy. They contend that it cannot be the intention of the legislation to achieve surrogacy inter alia by using genetically defective gametes or for other several medical reasons, when it is not possible for the couple to use their gametes and in such circumstances, it is impossible nay improbable that such conditions be imposed on the petitioners, when to have a child by surrogacy is the only option available to the couple. The petitioners have set out various grounds of assail to the rules, as stipulated by the impugned notification, to contend that such conditions, as incorporated by the impugned notification, apart from being contrary to the provisions of the Surrogacy Act are arbitrary, illogical as also violative of Articles 14 and 21 of the Constitution of India.

5. Mr. Dande, learned Counsel for the Petitioner has taken us though the memo of the Petition to show the bona fides of the petitioner to the effect that the medical condition of the wife, has been declared by the experts, to be such that there is no alternative for the Petitioners but to have a child, by the procedure of surrogacy. It is submitted that the challenge to the impugned rules stipulated by the notification dated 14 March 2023 are subject matter