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 the 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 the male gamete (sperm) of their spouse in the In Vitro Fertilization (IVF) method for creating an embryo to be implanted into the surrogate.

The restriction in the amended clause in Form-2 had come in their way of having a child through gestational surrogacy using donor female gamete as their medical condition did not favor the use of their own female gamete. “The fertilization of a donor oocyte by the sperm of the husband” was allowed in clause 1(d) of Form-2 prior to the amendment.

Other conditions

Noticing that the apex court had recently stayed the applicability of this clause in respect of a couple and allowed them to apply for surrogacy provided they fulfill other conditions as per the law, Justice Nagaprasanna said that, in the light of the peculiar quagmire and the impending urgency of every one of the petitioners and their medical condition, they would become entitled to opt for surrogacy through donor gametes.

“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 petitioners’ applications, if any, and issue eligibility certificate or essentiality certificate if the intending couple would fulfill all other conditions,” the court observed.