IMPORTANT POINT
The court's decision emphasized the importance of aligning amendments to subsidiary rules with the main provisions of the Act and ensuring that the statutory conditions for surrogacy are met.

JUDGMENT :

(Prayer in W.P.No.6411 of 2024: Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the 2nd and 3rd respondents to consider the petitioners representation dated 11.10.2023 under the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 and consequently issue eligibility certificate to the petitioners to undergo surrogacy procedure by utilizing the donor egg to the proposed surrogate mother and the 2nd petitioner's sperm.)

1. W.M.P.Nos.7187, 7192, 7120, 7174, 7182, 7184, 7169, 7153, 7164, 7155, 7160 and 7161 of 2024, filed seeking permission to file a single writ petition are ordered on payment of separate court fee, if not already paid.

2. These writ petitions have been filed by 12 couples seeking a mandamus directing the second respondent, being the Director, Directorate of Medical and Rural Health Services and the third respondent being the Joint Director of Health Service/District Medical Board to consider their representations under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 ('Act') and issue eligibility certificates to them to undergo the procedure of surrogacy utilizing the second petitioner's sperm and a donor egg from the proposed surrogate mother.

3. The Act provides for constitution of Boards at the National and State level as well as other authorities to regulate the practice and process of surrogacy. The procedure relating to surrogacy is set out in various rules and regulations, including in the Surrogacy (Regulation) Rules, 2022 (Rules). The Rules, provide, inter alia at Rule 14, that a woman may opt for surrogacy in certain specified medical conditions. Rule 14 reads as follows:-

"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-shaptd uterus) or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer;

(b) intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts, (Recurrent implantation failure);

(c) multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response;

(d) any illness that makes it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening."

4. The form of consent in Form 2 is relatable to Rule 7. Rule 7 deals with consent of a surrogate mother. Form 2 is the form of consent of the surrogate mother and the agreement for surrogacy. It contains inter alia various methods of treatment that may be adopted as follows:-

(a) stimulation of the genetic mother for follicular recruitment;

(b) the recovery of one or more oocytes from the genetic mother by ultrasound-guided oocyte recovery or by laparoscopy;

(c) the fertilization of the oocytes from the genetic mother with the sperm of her husband;

(d) the fertilization of a donor oocyte by the sperm of the husband;

(e) the maintenance and storage by cryopreservation of the embryo resulting from such fertilization until, in the view of the medical and scientific staff, it is ready for transfer;

(f) implantation of the embryo obtained through any of the above possibilities into my uterus, after the necessary treatment if any. (emphasis provided)

5. Vide Notification dated 14.03.2023, an amendment was proposed to the Form and existing paragraph 1(d), highlighted in bold above, was substituted as follows:-

"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.

.....

1(d) (I) Couple undergoing Surrogacy must have both game