Surrogacy using donor gametes cannot be prohibited as a condition in consent form when it is permit by rules, says Karnataka High Court

Though HC came to the conclusion that the clause (1)(d) of Form No-2 of the surrogacy regulations, amended with effect from March 14, 2023 (allowing surrogacy using both gametes from the intending couple only and not through donor gametes) as ‘blatantly contrary to law’, it refrained from declaring the amendment as illegal, as the issue of legality of the amendment is pending before the apex court.

Observing that disallowing surrogacy through donor gametes as a condition in the consent form for seeking permission to undergo surrogacy is contrary to the Surrogacy (Regulation) Act, 2021 and the Rules, the High Court of Karnataka has permitted 12 couples to opt for surrogacy through donor female gametes.

“It is trite law that a form cannot control the Act or the Rules, and if permitted, it would be akin to permitting the tail to wag the dog,” the court observed while pointing out that the form takes away the right of the eligible couple to undergo gestational surrogacy using donor gametes even though the Act and Surrogacy (Regulation) Rules, 2022 permit use of donor gametes.

Though the High Court came to the conclusion that the clause (1)(d) of Form No-2 of the surrogacy regulations, amended with effect from March 14, 2023 (allowing surrogacy using both gametes from the intending couple only and not through donor gametes) as ‘blatantly contrary to law’, it refrained from declaring the amendment as illegal, as the issue of legality of the amendment is pending before the apex court.

Justice M. Nagaprasanna passed the order while partly allowing petitions filed by 13 couples, who had questioned the legality of the March 14, 2023 amendment made to Form-2, and sought permission to have a child with donor female gamete. All the petitioners were qualified for surrogacy prior to the amendment made to the Form-2.

‘Dies dreaming motherhood’

A 37-year-old petitioner-woman died during the pendency of her petition, dreaming of motherhood, the court noted.

All the 13 women petitioners, who had approached the court along with their spouse, had one similar medical condition — that their female gamete (oocyte) cannot be used along with male gamete (sperm) of their spouse in the In Vitro Fertilization (IVF) method for creating an embryo to be implanted into the surrogate.