SC rejects new argument against the prohibition on surrogacy couples using donor gametes

The Supreme Court on Tuesday refused to entertain a plea against the Union Health Ministry rules prohibiting donor gametes to couples wanting children through surrogacy.

A vacation bench of Justices Bela M. Trivedi and Prashant Kumar Mishra said the notification is already under challenge and queried the petitioner's counsel, "are you filing this case just for publicity".

As the bench expressed its disinclination to entertain the petition, the petitioner's requested the court to allow him to withdraw the plea and it dismissed the petition as withdrawn.

On March 14, the Health and Family Welfare Ministry 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, and (2) single women (widow/divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.

The plea filed by Nalin Tripathi said: "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 & 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 contended that infertility has significant negative social impacts on the lives of infertile couples and particularly women, who frequently experience violence, divorce, social stigma, emotional stress, depression, anxiety and low self-esteem.

"The Judiciary in India too has recognized the reproductive right of humans as a basic right, in B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld 'the right of reproductive autonomy' of an individual as a facet of his aright to privacy' and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as 'one of the basic civil rights of man'. Thus, if reproductive rights get constitutional protection, surrogacy which allows an infertile couple to exercise that right, also gets the same constitutional protection," said the plea. (IANS/JS)