​युग्मक दान पर ऐतिहासिक अंतरिम आदेश

India is fast-becoming a growing realm of surrogacy and reproductive rights in India. With massive strides in the field of medical and legal development, and new surrogacy laws being passed every now and then, India is slowly owning up to the global standards of surrogacy. However, an exception that has always seemed to keep India behind is its refusal to accept donor gametes for surrogacy procedures, until now!

 

A groundbreaking court case has recently captured the attention of legal practitioners and individuals seeking to expand their families through assisted reproductive technologies. This remarkable court case and the interim order passed thereafter challenges the existing legislations and has far-reaching implications for infertile couples in the country. 

 

Read along to find out more about this landmark interim order led and accomplished by Sunil Khattri and Associates in the High Court of Delhi. 

 

FURTHER DETAILS 

The case revolves around the impact of a Notification dated 14th March, 2023 that was issued by the Ministry of Health and Family Welfare. The notification disallowed the use of donor gametes in surrogacy procedures and restricted it to couples who can provide both the egg and sperm for conception. 

 

In this instance, the intending couple in question faced infertility issues that necessitated the use of donor gametes. Despite trying various methods of conception, the couple was unable to bear children. However, they had been successful in cryogenically preserving a fertilized embryo for surrogacy procedure that resulted from a donor oocyte and its fertilisation by the husband’s sperm - all before the notification had come in. In this case, they could be legally classified under the circumstance of “infertility” as defined by the ART Act. 

 

According to the Assisted Reproductive Technology (Regulation) Act of 2021, 

The term “‘infertility’ indicates “the inability to conceive after one year of unprotected coitus or other proven medical condition preventing a couple from conception”.
 

Due to their limitations and the inability of one of them to produce gametes rendered them unfit for availing surrogacy services. They went on to challenge the notification, arguing that it infringed upon the rights of infertile couples who can’t naturally bear children. According to the, it contravened the very essence of the Assisted Reproductive Technology Act of 2021.

 

As for the judiciary, the National Assisted Reproductive Technology and Surrogacy Board justifies the restrictions as valid by highlighting two major factors. 

 

First, it contends that there is a need for surrogate children to be genetically related to the intended parents. 

Second, it states that a child that is not biologically related to the couple has a higher risk of being rejected and abandoned by the parents. 

 

However, according to the intending couple, the notification unreasonably curtailed their access to legally regulated surrogacy services and discriminated against medically infertile couples who couldn’t produce healthy gametes.  

 

They also believe that the notification brings about a significant change in the regulatory regime for surrogacy in India because it prohibits the use of donor gametes in surrogacy procedures and makes it inaccessible for infertile couples genuinely looking to start a family of their own. 

 

Not only is it exclusive of such couples that are biologically infertile but also for single women. And thus, the couple believed that such regulations raise a fundamental conflict with the Act's stated objectives and, in a way, violate their right to life and reproductive autonomy. 

 

COURT’S INTERIM ORDER - AWARENESS

In light of the intending couple's exceptional case, a landmark decision in the form of an interim order allowed them to access surrogacy services in India. The court finds that the decision is justified to preserve the basic civil rights, human rights and the right to reproductive autonomy for the couple. 

 

While the intending couple was legally allowed to resume their process of gestational surrogacy, can the interim order be applied to other such couples? That is something that’s left for us to see.

 

If you are faced with a similar situation of medical infertility and are looking to avail surrogacy services in India via donor gametes, Sunil Khattri & Associates can help. Click here to know more.

 

CONCLUSION

This landmark interim order successfully pulled through by our team of legal experts at the High Court of Delhi has opened new doors for prospective parents exploring surrogacy services in India. The order allowing an infertile couple to access surrogacy services using donor gametes  is definitely a ray of hope for many others facing similar challenges.

 

It highlights the importance of preserving the fundamental civil and human rights, including the right to reproductive autonomy and recognizes that the restrictions on donor gametes disproportionately affect medically infertile couples and single women. 

 

Most importantly, the impact of this interim order extends beyond the specific case and invites us to ponder its potential implications for other couples in similar situations. As India continues to make strides in the field of assisted reproductive technologies, it is heartening to witness legal developments that align with global standards of surrogacy. 

 

For those who find themselves in a similar situation and wish to explore surrogacy services using donor gametes, our team of experts at Sunil Khattri & Associates are readily available to provide end-to-end guidance and support. Contact us today!