Excluding Infertile Couples From Surrogacy Violates Rights: Delhi High Court

The exclusion of "infertile couples" from the benefit of surrogacy prima facie violates their basic right to parenthood as it denies them access to legally and medically regulated procedures and services, the Delhi High Court said.

The court's order came on a petition filed by a married couple aggrieved by an amendment to the surrogacy law "effectively barring the use of surrogacy services by infertile couples unless both of them have the ability to generate gametes".

The couple said before the March 14 notification by the Centre that introduced the exclusion in question by amending paragraph 1(d) of Form 2 under rule 7 of the Surrogacy (Regulation) Rules, 2022, they were looking for a surrogate since the woman could not conceive, but have now been deprived of their right to parenthood for all times to come and their fertilised embryo has become "legally unviable".

A bench headed by Chief Justice Satish Chandra Sharma said the crux of the matter lies in the "apparent discrimination faced by infertile couples" based on their ability to produce viable eggs.

"In cases where a wife is able to produce viable oocytes (egg), however, is unable to carry a gestational pregnancy, the intending couple would be able to avail the surrogacy procedure in accordance with law. However, should the wife not be able to produce viable oocytes, they would not be permitted to become parents through surrogacy," the court noted in its recent interim order.

"Prima facie, the impugned notification violates the basic rights of a married infertile couple to parenthood by denying them access to legally and medically-regulated procedures and services," the bench, also comprising Justice Sanjeev Narula, said.

The court further observed that the notification does not disclose any rational justification, basis, or intelligible criteria for discriminating between citizens based on their ability to produce gametes for the purpose of availing surrogacy services.

In its interim order, the court allowed the petitioners to resume the process for gestational surrogacy using their preserved embryos, which were generated using donor oocytes fertilised by the husband's sperm prior to the issuance of the notification under challenge.

The court said the amendment cannot be allowed to retroactively render their embryo legally unviable as the petitioners possess a vested and constitutionally protected right to parenthood.

The petitioners moved the high court earlier this year and said the "restrictive condition" under the law violates their fundamental rights under articles 14 and 21 of the Construction as well as deprives them of their basic civil and human right to parenthood and complete family life.

"Petitioners have a vested right to parenthood and the amendment cannot be allowed to render their legally-fertilised embryo unviable," the plea said.

"The impugned notification seeking to restrict surrogacy services only for couples having the capacity to produce their own gametes as such violates their fundamental rights under Article 21. Genetic purity of the embryo and the foetus cannot be the basis of depriving infertile couples of parenthood. If it was, adoption would be impermissible in law," argued the petition.

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