The court's decision emphasized the importance of aligning amendments to subsidiary rules with the main provisions of the governing legislation.

O R D E R

W.M.P.No.4414 of 2024, filed seeking permission to file a single writ petition is ordered on payment of separate court fee, if not already paid.

2. This writ petition has been filed by a couple 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 to allow the use of donor oocytes for pregnancy treatment under the provisions of Assisted Reproductive Technology (Regulation)

Act, 2021, the Surrogacy (Regulation) Act, 2021 and connected Rules.

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 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 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."

6. This would lead to a situation where Rule 14 would be rendered otiose as it adumbrates several medical conditions where the mother is unable to conceive.

7. When this anomaly was brought to the attention of the Hon'ble Supreme Court, an interim order was passed on 18.10.2023 in W.P.(C) No. 830 of 2023 staying the operation of newly substituted Rule

1(d). The order, reads as follows:-

“We find substance in the arguments of the learned counsel for the petitioner inasmuch as Rule 14 which is extracted above clearly refers to the wife