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Supreme Court refuses plea challenging rules prohibiting use of donor gametes for couple opting for surrogacy

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A view of Supreme Court of India in New Delhi.

A view of Supreme Court of India in New Delhi.
| Photo Credit: Sushil Kumar Verma

The Supreme Court on May 30 dismissed a plea challenging Union Health Ministry rules which prohibit donor gametes to couples opting for children through surrogacy.

Gametes are reproductive cells. In animals, the male gametes are sperms and female gamete is the ovum or egg cells.

On March 14, 2023, the Ministry of Health and Family Welfare published General Statutory Rules (GSR) 179 (E) which said: (1) a couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed (2) single women (widow/divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure.

Section 2(h) of The Assisted Reproductive Technology Regulation Act, 2021 defines “gamete donor” as a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child.

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A vacation Bench of Justices Bela M Trivedi and Prashant Kumar Mishra noted that the notification is already under challenge. “Why should we entertain this petition? Are you filing this case just for publicity?” the Bench said.

Sensing disinclination from the Bench, the counsel appearing for the applicant withdrew the plea and the matter was dismissed as withdrawn.

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The plea filed by advocate Nalin Tripathi challenged the rules on the ground that it is against the provisions of the Surrogacy (Regulation) Act, 2021, which gives the right of parenthood to infertile couples.

“The said GSR has the effect of frustrating the provisions of the Surrogacy [Regulations] Act, 2021 – which is a welfare legislation giving right of parenthood to infertile couples. The said GSR is not only violative of Article 14 and 21 of the Constitution of India, but is also contrary to the objectives of the enactment; therefore the instant writ petition is being filed under Article 32 of the Constitution of India, 1950,” the plea said.

It said infertility has significant negative social impact on the lives of infertile couples, particularly women, who frequently experience violence, divorce, social stigma, emotional stress, depression, anxiety and low self-esteem.  

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