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It was also argued that the rules required affirming the consent of the surrogate mother, which originally permitted the implantation of embryos fertilized from donor eggs and the intending father’s sperm
The Bombay High Court last week allowed two couples to avail surrogacy through donor eggs, which is prohibited under the amended surrogacy rules.
The division bench of the high court, comprising Justice GS Kulkarni and Justice Firdosh Pooniwalla, was hearing a petition filed by a couple challenging the amended rules that mandated both gametes (eggs) to originate from the intending couple, thus excluding the use of donor gametes.
The petitioners contended that imposing such a condition would be violative of the Surrogacy Act.
The petitioners also argued that such a condition would defeat the purpose of the Act if they were being denied parenthood.
It was also argued that the rules required affirming the consent of the surrogate mother, which originally permitted the implantation of embryos fertilized from donor eggs and the intending father’s sperm.
Additionally, the petitioners submitted that due to medical conditions, such as chromosomal defects or advanced age affecting egg quality, they were unable to conceive naturally or with their gametes.
The high court agreed with the petitioners' contention and stated that the rules should not apply to them.
"The petitioners contend that they were left with no option but to achieve parenthood by surrogacy. Considering such facts, the petitioners need to adopt the surrogacy procedure and in doing so, they cannot be foisted with the rules under challenge. It is ordered that the rule shall not be applied to the petitioners and they would be entitled to opt for surrogacy" the order states
The bench further noted that if the petitioners' prayers were not allowed, it would cause prejudice to their legal rights.
"We are of the clear opinion that if the protection as prayed for is not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023", the order states.
Case title: XXX vs UOI
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