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Karnataka HC allows thirteen couples to opt for surrogacy via donor gametes | Bangalore News

The Karnataka High Court has partially allowed several petitions, with the effect that thirteen couples who are petitioners in the matter will be able to opt for surrogacy via donor gametes. The order was passed on November 18 by Justice Nagaprasanna, with regard to the petitions which argued against an amendment to the Surrogacy Rules which disallowed donor gametes.

In this case, the petitioners were those who had to opt for surrogacy owing to various medical conditions and health issues. The counsel for the couples argued that due to the amendment, while the act itself permitted sourcing of eggs, the amendment removed the same. He argued that this was contrary to the Act permitting surrogacy for medical conditions. The counsels for Union of India arguing against this said that any interference would tamper with the reasoning behind the Act which was to stop commercial surrogacy. It was also argued that the matter was pending before the Supreme Court, and that the amendment was in any case stayed. The counsel for the couples rebutted that the stay was only for a single petitioner to undergo surrogacy. He further pointed out the urgency of the matter, stating that an intending mother had already passed away during the case.

The bench observed, ” The amendment is that the couple undergoing surgery must have both gamete from the intending couple and donor gametes is not allowed. It specifically, pins at an intending couple, but not to any others. The purport of the amendment is that both the husband and the wife must have their own gamete and not donor gamete…. An amendment to a Form, is trite, that it cannot run counter to the Act or the Rules….. The Rule that permits surrogacy is taken away by the impugned notification which is an amendment to the consent Form of surrogacy It is trite law that a Form cannot control the Act or the Rules and if permitted to remain, would be akin to permitting the tail to wag the dog.”

Despite their reservations, however, the Court chose not to strike down the amendment since the matter was pending in the Supreme Court, observing, ” To a pointed query to the battery of counsels representing the Union of India
lead by the Deputy Solicitor General as to the rationale behind the amendment, no convincing answer has come about, nor is in print in the statement of objections. Therefore, in the considered view of the Court, though this Court finds the amendment blatantly contrary to law, is not answering the challenge, as the challenge is pending before the Apex Court.”

However, the court stated that the thirteen couples would specifically be entitled to undergo surrogacy using donor gametes, and the amendment would not apply to them, “In the light of the peculiar quagmire and the impending
urgency of every one of the petitioners qua their medical conditions.”

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