Bengaluru: In a significant judgment, the Karnataka High Court has allowed 12 couples to use donor gamete for surrogacy despite the recently amended surrogacy regulations disallowing it. A bench of Justice M Nagaprasanna, while hearing the petitions challenging the surrogacy amendment effected in March this year, directed the concerned authorities to allow the petitioners to undergo surrogacy.
“The authorities cannot insist or direct the petitioners that the donor gamete cannot be made use of by the intending couple. The authorities shall forthwith process the applications, if any, and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfil all other conditions,” Justice M Nagaprasanna said in the judgment order over the petition by 13 petitioners.
It is learnt that one of the petitioners has passed away during the trial.
Also read: SC refuses plea challenging rules prohibiting use of donor gametes for couple opting for surrogacy
Significance: The Karnataka High Court judgment allowing surrogacy comes months after the Centre, in March this year notified the Surrogacy regulations banning donor gametes. The amendment to clause (1)(d) of Form 2 of the Surrogacy Regulations stipulated that a couple intending to have babies through surrogate mothers must have both gametes from the intending couple not outside.
Karnataka HC criticizes the Surrogacy amendment: The Karnataka High Court observed that while the Surrogacy Act per se, allows gamete from donor couples, the amendment stipulates the opposite. The HC while citing the medical condition of the petitioner women observed, “If the medical conditions quoted of all the 1st petitioners in these cases are considered on the bedrock of the provisions quoted hereinabove, it would clearly indicate that they are entitled to opt for gestational surrogacy. The Act permits; the Rules permit; (but) the Form appended to the Rules takes away the right of intending couple.”
Amendment in Surrogacy regulations: The Centre on March 14 this year, effected an amendment in the Surrogacy Act particularly to clause (1)(d) of Form 2 thereby barring gamete from donor in surrogacy. The Union Health Ministry published the General Statutory Rules (GSR) 179 (E) saying that a couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed. The amendment also said that a single woman (widow/divorcee) undergoing surrogacy must use self-eggs and donor sperm to avail surrogacy procedure. The amendment was effected in a bid to curb the commercialisation of surrogacy notoriously known as “rent a womb”.
Similar plea in SC: A similar plea challenging the Centre's amendment was filed in the Supreme Court which was dismissed by the apex court in May this year.
