IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO._________ OF 2023

[A Writ Petition under Article 32 of the Constitution of India for

Enforcement of Fundamental Rights Guaranteed Under Part-III of The

Constitution]

IN THE MATTER OF:

SREELEKSHMI . & ORS. …. PETITIONERS

//VERSUS//

UNION OF INDIA & ORS. …. RESPONDENTS

PAPER BOOK
[KINDLY SEE INDEX INSIDE]

ADVOCATE FOR THE PETITIONERS: MS. MOHINI PRIYA

 INDEX

Sl. Particulars of Document Page No. of part to Remarks

No. which it belongs
Part I Part II
(Commen (Comme
ts of nts of file
Paper alone)
Book)

(iii) (iv) (v)

(i) COURT FEES Rs. Rs.2030/-
1. O/R on Limitation
2. Listing Proforma A1- A2
3. Cover Page of Paper Book A-3
4. Index of Record of Proceedings A-4
5. Limitation Report prepared by the A-5
Registry
6. Defect List A-6
7. Note Sheet NSL ..
8. List of Dates B-P
9. Writ Petition with affidavit 1-30
10. Annexure P/1 31
A copy of the notification dated
14.03.2023
11. Annexure P/2 32-34
A copy of Form 2 under the
Surrogacy(Regulation) Rules
2022.
13. Annexure P/3 35-36
A copy of the Medical Board
Certificate dated 27.02.2023
alongwith typed copy.
Annexure P/4 37
A copy of the relevant medical
report dated 24.03.2023.
14. Annexure P/5 38
A true copy of the Treatment
detail regarding petitioner No.2
dated 14.03.2023
15. Annexure P/6 39-40
A copy of the medical board
certificate dated 30.01.2023
16. Annexure P/7 41-43
The certificate of medical
indication for intending couple
17. F/M 44
18. Vakalatnama with M/A 45-48
 RECORD OF PROCEEDINGS

SL.NO. DESCRIPTION OF DOCUMENTS PAGES

 A/1
LISTING PROFORMA
IN THE SUPREME COURT OF INDIA

SECTION:X
The case pertains to:
• Central Act (Title) : Under Article 32 of the Constitution
of India
• Section : N.A.
• Central Rule (Title) : N.A.
• Rule No(s). : N.A.
• State Act (Title) : N.A.
• Section : N.A.
• State Rule (Title) : N.A.
• Rule No(s). : N.A.
• Impugned Interim Order (Date) : N.A.
• Impugned Final Order / Decree (Date) : N.A.
• High Court (Name) : N.A.
• Name of Judges : N.A.
• Tribunal / Authority (Name) : N.A.
Nature of the matter : Civil
1.
2. (a) Petitioner / Appellant No.1 : SREELEKSHMI C. & ORS.
(b) Email I.D. : N.A.
(c) Mobile phone number : N.A.
3. (a) Respondent No.1 : UNION OF INDIA & ORS.
(b) Email I.D. : N.A.
(c) Mobile phone number : N.A.
4. (a) Main category classification : 0812 Letter Petition
(b) Sub-classification : Others
5. Not to be listed before : NA
 A/2
6. (a) Similar disposed of matter with : No similar matter disposed of
citation, if any, & case details
(b) Similar pending matter with case : W.P.(C) No. 756 of 2022
details Arun Muthuvel Vs. Union of India
7. Criminal Matters: NO
(a) Whether accused / convict has : N.A.
surrendered

(b) FIR No. : N.A

Date : N.A
(c) Police Station : N.A
(d) Sentence Awarded : N.A
(e) Period of sentence undergone including : N.A
period of detention / custody undergone
8. Land Acquisitions Matters: Yes
(a) Date of Section 4 notification : N.A.
(b) Date of Section 6 notification : N.A.
(c) Date of Section 17 notification : N.A.
9. Tax matters:
State the tax effect : N.A.
10. Special Category : • Senior citizen > 65 years
(first Petitioner / Appellant only) • SC / ST
• Woman / Child
• Disabled
• Legal Aid case
• In custody
11. Vehicle Number (in cases of Motor Accident : N.A.
Claim matters)

Filed by

[MS.MOHINI PRIYA]
Filed on : 12.04.2023
11.04.2022 Advocate for the petitioners
 B
SYNOPSIS

Child bearing is one of the most basic and strongest human desires.

Infertility affects women’s identity, status and security and they

experience stigmatization, isolation and powerlessness. Childless

women are more vulnerable to blame, mental and physical violence,

threats of abandonment, divorce and social exclusion. They are under

psychological, familial and community pressure to have their own

biological child. As per the WHO, infertility has been classified as a

disease affected one in every 6 adults worldwide. In this scenario, the

advancement in medical technology can come to the rescue of millions

of needy childless couples through use artificial reproductive techniques

which include surrogacy and IVF. Therefore the State should endeavor

to bring the legislations governing these areas in alignment with the

latest scientific and technological developments as well as constitutional

safeguards, making them enabling rather than restrictive, so as to

effectively tackle the problem of infertility and childlessness.

The present Writ Petition prays for striking down the arbitrary and

unconstitutional amendment brought about in Rule 7 of the Surrogacy

Regulation Rules, 2022 by way of the impugned notification dated

14.03.2023 disallowing use of donor gametes by intending couples and

donor eggs by single women (widows an divorcees), which has

 C
abruptydebarred the Petitioners from availing surrogacy despite being

otherwise eligible for the same in all other parameters prescribed by the

Surrogacy (Regulation) Act. 2021.

Petitioners herein are needy childless middle income group people who

are desirous of begetting a child through surrogacy as their last ray of

hope to start a family. The petitioners herein, have lost the chance of

conceiving a baby through natural means due to unhealthy and low egg

reserve either due to age or chronic congenital medical conditions that

pose a threat to their lives on attaining pregnancy as well as the

associated hereditary risks to the baby, thereby necessitating the use of

donor eggs for surrogacy. However, they are severely constrained and

aggrieved by the restrictive and limiting interpretation given to Section

2(1)(zg) of the Surrogacy (Regulation) Act, 2021and the recent

notification dated 14.03.2023 issued by the Department of Health

Research, Ministry of Health and Family Welfare, Government of India

bringing about an amendment in Form 2 under Rule 7 of the Surrogacy

Regulation Rules, 2022. The same is reproduced hereinbelow:

“2. In Form 2 under rule 7 of the Surrogacy (Regulation) Rules,

2022, the existing Para 1 (d) stands omitted and shall be

substituted as under:-
 D
1 (d) (I) Couple undergoing Surrogacy must have both gamete

from the intending couple & donor gametes is not allowed;

(II) Single woman (widow/divorcee) undergoing Surrogacy must

use self eggs and donor sperms to avail surrogacy procedure.

At the outset it is humbly submitted that the impugned notification

seems to be issued in a hasty manner without application of mind

andwithout understanding the scientific and medical implications of

barring donor eggs for surrogacy, which in most cases is not a matter of

choice but a medical necessity. The Respondents by way of the

impugned notification have disentitled the Petitioners herein and several

other needy and middle class childless couples who are otherwise

eligible under the Act to avail of surrogacy but do not have healthy

oocytes due to medical and other reasons for a successful IVF leading to

surrogacy.

That some of the conditions wherein use of donor eggs are necessitated

for surrogacy are stated hereinbelow:

 Age of female

 Low Ovarian Reserve

 Unhealthy ovaries resulting in several failed IVFs

 E
 Women born without a uterus( MRKH syndrome)

 Women who have a rare congenital disease of the heart

posing risk to her life due to pregnancy

 Women born with rare congenital disease with a hereditary

risk of passing it on to the offspring.

 Early menopause

That before delving into the issue of unconstitutionality and legal

inadequacies of the impugned notification, it is pertinent to understand

the events leading up to the issuance thereof:

That Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021, defines

a “surrogate mother” as follows:---

2 (1) (zg) “surrogate mother” means a woman who agrees to bear a

child (who is genetically related to the intending couple or intending

woman) through surrogacy from the implantation of embryo in her

womb and fulfils the conditions as provided in sub-clause (b) of clause

(iii) of section 4;

The language used in the aforesaid provision is ambiguous and leaves

ample scope of misinterpretation regarding the requirements of a

surrogate mother and the child born through surrogacy. That certain

intermediate applications were filed in the Supreme Court in a PIL

 F
challenging several provisions of the Surrogacy (Regulation) Act, 2021

and the Assisted Reproductive Technologies Act, 2021, titled

ArunMuthuvel v/s Union of India, WP (C) 756/2022 to clarify the term

“genetically related” used in Section 2(1)(zg). That in pursuance of the

said IAs, the National Board conducted a meeting on31.03.2023 to

deliberate upon this issue by a duly appointed Expert Committee

formed from amongst the members of the National Bard, as well as

other issues raised in the PIL. The Central Government while

interpreting Section 2(1)(zg) of the Act issued a clarification that the

term “genetically related” used in the definition of a surrogate mother

qualifies the child and not the surrogate mother. However, the

government further stated that the requirement of a child being

“genetically related” be interpreted as :

1) Couple undergoing surrogacy must have both gametes from the

intending couple and donor gametes are not allowed. 2) Single

Women (widow/divorcee) undergoing surrogacy must useself

eggs and donor sperms to avail surrogacy procedures.

That thereafter, on 14.03.2023 the Department of Health and Family

Welfare, Government of India came up with the impugned notification

barring use of donor gametes for surrogacy for intending couples while
 G
allowing only Single women (widows/divorces) to use donor sperms

and own eggs for the purpose of surrogacy.

That the aforesaid amendment is irrational and arbitrary as it does not

take into consideration that the Surrogacy Act, 2021 under Section

4(iii)(b)(I) itself allows married women upto 50 years of age to avail of

surrogacy. It is almost inconceivable keeping in mind the present

environmental and physiological conditions of a woman to expect a

woman of 50 years of age to have healthy oocytes for a successful IVF

for surrogacy. Thus the amendment dated 14.03.2023, disallowing

donor eggs for surrogacy is inconsistent and contradictory to the

provisions under the principal Act.

Moreover, Rule 7, Section 1(d) of the Surrogacy Regulation Rules 2022

as it stood before the Amendment Act of 2023 reads as follows:

“1. That I understand that the methods of treatment may include

………….

(d) the fertilization of a donor oocyte by the sperm of the

husband;

A bare reading of the aforesaid provision in the 2022 Rules would make

it clear that the intention of the legislature while framing the provision
 H
was never todebar intending couple from use of donor eggs and was

very much allowed under the Surrogacy Rules, 2022. In fact use of

donor eggs,is sometimes a medical necessity for an intending couple and

should be allowed. Thus a more reasonable and purposive interpretation

of the aforesaid provision under Section 2(1)(zg) would have been that

the child born through surrogacy should genetically related to either one

of the intending couple, rather than mandating the child to be

genetically related to both.

It is hereby submitted that the impugned notification is irrational and

discriminatory as it distinguishes between single and married women in

their right to avail donor gametes for surrogacy. While the former can

use donor sperms the latter are barred from using donor gametes. It is

asserted here that the rights of the married women who may not have

healthy eggs are infringed.

That furthermore there is a need to bring the Surrogacy (Regulation)

Act, 2021 and the Assisted Reproductive Techniques (ART), 2021 in

consonance with each other as gestational surrogacy cannot be availed

sans ART. While the ART Act, 2021 allows the use of donor eggs for

IVF procedures, the Surrogacy Amendment Rules, 2023 vide the

impugned notification dated 14.03.2023 explicitly bars intending

 I
couples and intending women from using donor eggs for surrogacy

thereby causing a contradiction between the two Acts .

That moreover, the Government while passing the impugned notification

failed to take into account that the Surrogacy (Reulation) Act, 2021 is a

beneficial legislation and hence should be given a purposive

interpretation. The purpose of the Act is the protect the interests of

childless couples/ women and the child born out of surrogacy while

preventing the possible exploitation of surrogate mothers. While the

Surrogacy (Regulation) Act, 2021 attempts to protect the interests of

surrogate mothers and children born out of surrogacy it has turned a

complete blind eye towards the need of the childless couples for whom

surrogacy is the last ray of hope of begetting a child but have been

unreasonably barred from availing its benefits due to the imposition of

unreasonable restrictions on use of donor eggs vide the impugned

notification dated 14.03.2023.

It is a well settled principle of law that a beneficial legislation ought to

be given a liberal interpretation as has been held in a catena of

judgments and most recently in the case of X Vs Principal Secretary

Health and Family Welfare Department andAnr.(2022 SCC Online

SC 905) wherein this Hon’ble Court held that progressive and beneficial
 J
legislation must be interpreted in favour of the beneficiaries when it is

possible to take two views of a legal provision.

That it has also been held by this Hon’ble Court in KH NazarVs

Mathew K Jacob (2020) 14 SC 126 that literal construction of a

beneficial legislation should be avoided and that it is the court’s duty to

discern the intention of the legislature in making the law.

That this Hon’ble court has always stood by transformative cases

through its judgments in cases like Navtej Singh Johar Vs Union of

India (2018) 10 SCC 1. By restricting the use of donor eggs for

surrogacy in the name of social morality the impugned judgment allows

the same to prevail over constitutional morality thereby deviating from

the well enshrined principle of transformative constitutionalism.

That the impugned notification infringes on the woman’s reproductive

autonomy which has been discussed in detail inX Vs Principal

Secretary Health and Family Welfare (supra) stating that “..the ambit

of reproductive rights is not restricted to the rights of the woman to

have or not have children. It also includes the constellation of freedoms

and entitlements that enable a woman to decide freely on all matters

relating her sexual and reproductive health…”

 K
That the Right to Privacy as a constitutionally protected right under

article 21 enables individuals to retain and exercise autonomy over the

body and mind as has been postulated in the judgment of

K.S.Puttaswamy Vs Union of India. The autonomy of the individual

was defined as “the ability to make decision on vital matters of concern

to life”. The judgment specifically states that “the woman’s freedom of

choice whether to bear a child or abort her pregnancy are areas which

fall in the realm of privacy”

In the light of theabove it is most respectfullysubmitted that Section

2(1)(zg) of the Surrogacy (Regulation) Act, 2021 should be interpreted

liberally so as to benefit several needy intending couples/intending

women and restrictive interpretation that bars the usage of donor eggs

has to be read down as being unconstitutional and against the interests

of the society. Moroever the impugned notification dated 14.03.2023 be

struck down as unconstitutional so as to allow the Petitioners herein to

avail use of donor eggs for surrogacy.

Hence, the present writ petition.

 L
DATE PARTICULARS

27.11.2020 The Petitioner No. 1, Mrs. Sreelekshmi C is 34 years

old. The Petitioner no. 1 and her husband got

married in the year 2019.

However in the year 2020, she was informed by

medical professionals that her pregnancy posed a

high risk due to her rare congenital heart problem

known as tetralogy of fallot, which is a combination

of four related heart defects, after which a medical

termination of the pregnancy was conducted at the

sixth week.

On 10.02.2023, the Petitioner was advised by the

Kraft Fertiflity centre, Kochi to go for surrogacy

with the use donor eggs, as there is a hereditary risk

of transfer of her congenital heart disease to her

offspring.

On 27.02.2023, Petitioner No.1 and her husband

were granted permission by the District Medical

Office, Ernakulum, Kerala that they can opt for

surrogacy due to Petitioner No.1’s health condition

 M
subject to compliance with the Assisted

Reproduction Techniques Act, 2021.

However, an ultrasound conducted on 24.03.2023

revealed that Petitioner No.1 had a reduced bilateral

ovarian reserve as well as a very low level of anti-

mullerian hormone due to which it is difficult to go

ahead with ovarian stimulation and egg retrieval

procedure for her, hence she was advised to approach

a donor oocyte option for surrogacy.

25.12.2021 Surrogacy (Regulation) Act, 2021 was passed.

10.03.2022 The Surrogacy (Regulation) Rules, 2022 were

promulgated. Rule 7, Section 1(d) of the Surrogacy

Regulation Rules 2022 mandated the following:

“1. That I understand that the methods of treatment

may include:

…….

. (d) the fertilization of a donor oocyte by the sperm of

the husband;

Thus, permitting the use of donor oocyte/s for the

process of surrogacy.
 N
26.11.2022 Petitioner no. 4, Preetha R. suffers from congenital

heart defect known as to VSD- Eisenmengger

Syndrome, wherein a person is born with a hole in the

heart. She is 43 years of age. The Petitioner no. 4 and

her husband got married in 2016 and since then they

were trying to conceive a baby. Due to her medical

condition the Petitioner no. 4 in the year 2017 was

advised by doctors to avoid pregnancy or pregnancy

related procedures and as such the only way forward

for the Petitioner no. 4 and her husband to have a

baby is through surrogacy using donor eggs. On

26.11.2022 were issued a certificate of medical

indication necessitating surrogacy by the District

Medical Board.

30.01.2023 Petitioner No.3, Prabha Babu is 49 years old . She and

her husband have been married for 20 years and

unable to conceive a baby since 15 years. She

underwent multiple IUI, IVF but the results were

negative. She was under infertility treatment due to

low ovarian reserve at Sabine Hospital since

 O
22.01.2015. In the year 2017 she conceived through

IVF but had a miscarriage. Thereafter, all further

attempts at IVF failed and their only option was

surrogacy using donor eggs. Thereafter on

30.01.2023, the Petitioner no. 3 and her husband were

granted permission by the District Medical Office,

Ernakulum, Kerala that they can opt for surrogacy.

14.03.2023 Petitioner No. 2, Smita Saheendran is 40 years old

and has been married for 18 years. and began

treatment for infertility treatment in the year 2018 at

Sabine Hospital, Muvattupuzha. However, she was

diagnosed with fibroids in her uterus which later led

to intrauterine rupture resulting in lack of sufficient

healthy self eggs for conceiving. After several failed

attempts at IVF, 0n 14.03.2023 she was advised by

doctors to go for surrogacy. Due to lack of healthy

eggs leading to several failed IVF attempts, the

Petitioner no.2 is necessitated to use donor eggs for

surrogacy.
 P
14.03.2023 Rule 7 of the Surrogacy Regulation Rules, 2022 was

amended, thereby, mandating that the couple

undergoing Surrogacy must have both

gamete from the intending couple & donor gametes

are not allowed. Further, Single women

(widow/divorcee) undergoing Surrogacy must use

self eggs and donor sperms to avail surrogacy

procedure.

12.04.2023. Hence the present Writ Petition

 1
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO._________ OF 2023

[A Writ Petition under Article 32 of the Constitution of India for

Enforcement of Fundamental Rights Guaranteed Under Part-III of The
Constitution]

IN THE MATTER OF:

1. Sreelekshmi. C
W/o. Mr. Rajesh Kumar
Thoniplamkeezhil Padinjarethil
Mannam Nagar. P. O
Perumpulickal,
Pandalam,Pathanamthitta (Dist)
Kerala,689501

2. Smitha C
W/o. Saheendran UT
Uppumthara House
Pantharangadi P.O., Tirurangadi,
Malappuram-976306, Kerala

3. Prabha R.
W/o. Babu T.R,
R/o. Krishnakripa. South Gate,
PO+PS.:Ambalappuzha,
Alapuzzha-688561, Kerala

4. Preetha R
W/o Krishnakanth CK
Chathamkandath, Mankara PO
Palakkad DT, Kerala
Pin-678613 ..... Petitioners
Versus

1. Union of India
Ministry Health and Family Welfare Department
 2
Thr. Its Secretary,
Room No. 348; 'A' Wing, Nirman Bhavan,
District: New Delhi-110001

2. State of Kerala
Department of Health and Family Welfare
Through its Secretary
XX2+ 7TH , Government Secretariat Annexe, 2,
Thiruvananthapuram- 695001
Kerala

3. Indian Council of Medical Research

Thr. It„s Secretary
V. Ramalingaswami Bhawan,
P.O. Box No. 4911, Ansari Nagar,
New Delhi -110029 .... Respondents

[ALL ARE CONTESTING RESPONDENTS]

To
The Hon'ble Chief Justice of India
And his other companion Judges
Of the Hon'ble Supreme Court of India

The humble Petition of the

Petitioners above named.

MOST RESPECFULLY SHOWETH:

1. That the petitioners herein are citizens of India and competent to

invoke the extra-ordinary jurisdiction of the Hon’ble Court under

Article 32 of Constitution of India.

2. That the petitioners have not approached any of the respondent or

other authority for similar relief.

 3
3. That on 10.12.1948, the General Assembly of the United Nations

adopted the Universal Declaration of Human Rights(UDHR).

That Article 12 of the Universal Declaration of Human Rights, to

which India is a signatory, states that no one shall be subject to

arbitrary interference with his/her privacy, family, home or

correspondence nor to attacks upon his/her honor and reputation

4. That the Article 51 of the Constitution requires the state to foster

respect for international law and treaty obligations in the dealings

of organized people with one another. The Protection of Human

Rights Act 1993 recognizes and incorporates international

conventions and treaties as part of Indian human rights law.

International human rights norms contained in treaties and

covenants ratified by India are binding on the state to the extent

that they elucidate and effectuate the fundamental rights

guaranteed by the Constitution.

5. India is the first and only country to explicitly adopt scientific

temper in its constitution. In the forty-second amendment in

1976, Article 51 A(h) was added under the Fundamental Duties

that states that It shall be the duty of every citizen of India to

develop scientific temper, humanism and the spirit of inquiry and

reform.
 4
6. Infertility affects more than 80 million people worldwide.

Infertility affects women’s identity, status and security and they

experience stigmatization, isolation and powerlessness. Childless

women are more vulnerable to blame, mental and physical

violence, threats of abandonment, divorce and social exclusion.

They are under psychological, familial and community pressure

to have their own biological child. They seek treatment, including

assisted reproductive technologies (ARTs), if affordable.

7. In some societies religion and law prevent couples from using

donated gametes but in many they are ethically and legally

accepted and in some the restrictions are ignored in the

desperation to have a child. Some couples travel abroad to access

donor gametes and ARTs that are not accessible in their own, for

legal or other reasons. It is broadly understood that gamete and

embryo donation are safe, cost effective and beneficial for

infertile couples.

8. The Petitioners herein are needy childless women desirous of

begetting a child through surrogacy as their last hope, in exercise

of their reproductive rights guaranteed under Article 21 of the

Constitution within the defined legal framework of the Surrogacy

 5
(Regulation) Act, 2021, but are severely constrained and

aggrieved by the restrictive interpretation of Section 2(1)(zg) of

the Surrogacy (Regulation) Act, and the recent notification dated

14.03.2023 issued by the Department of Health Research,

Ministry of Health and Family Welfare, Government of India in

order to bring about an amendment in Form 2 under Rule 7 of the

Surrogacy Regulation Rules, 2022, which has debarred them from

proceeding with surrogacy using donor eggs, despite being

otherwise eligible for the same. The impugned notification is

reproduced herein below;

“In exercise of the powers conferred by section 50 of the

Surrogacy (Regulation) Act, 2021 (47 of 2021), the Central

Government hereby makes the following rules, further to

amend the Surrogacy (Regulation) Rules, 2022, namely;-

1. (1) These rules may be called the Surrogacy (Regulation)

Amendment Rules, 2023.(2) They shall come into force on
the date of their publication in Official Gazette.
2. In Form 2 under rule 7 of the Surrogacy (Regulation)
Rules, 2022, the existing Para 1 (d) stands omitted and
shall be substituted as under;-
1 (d) (I) Couple undergoing Surrogacy must have both
gamete from the intending couple & donor gametes is not
allowed;-
 6
(II) Single woman (widow/divorcee) undergoing Surrogacy
must use self eggs and donor sperms to avail surrogacy
procedure.:”
A copy of the notification dated 14.03.2023 is annexed herewith

and marked as Annexure P/1 at page No.31.

9. That Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021,

defines a “surrogate mother” as follows-

2 (1) (zg) “surrogate mother” means a woman who agrees

to bear a child (who is genetically related to the intending couple
or intending woman) through surrogacy from the implantation of
embryo in her womb and fulfils the conditions as provided in sub-
clause (b) of clause (iii) of section 4;

That the definition of surrogate mother as under Section 2(1)(zg)

leaves scope of interpretation due to the ambiguity of language

used by the legislature and certain IAs were filed in the PIL

challenging several provisions of the Surrogacy (Regulation) Act,

2021 and the Assisted Reproductive Technologies Act, 2021,

titled Arun Muthuvel v/s Union of India, WP (C) 756/2022 to

clarify the position as regards the term “genetically related” used

in Section 2(1)(zg). That in pursuance of the same, the counter

affidavit filed by the Central Government on 13.03.2023, in the

aforesaid PIL, the Central Government while interpreting Section

 7
2(1)(zg) of the Act issued clarification that the term “genetically

related” used in the definition of a surrogate mother qualifies the

child and not the surrogate mother. However, the government

further stated at Para 36 of the counter affidavit that the duly

appointed Expert Committee formed from amongst the members

of the National Bard in their meeting dated 31.01.2023 have

decided that requirement that the requirement of a child being

“genetically related” be interpreted as

1) Couple undergoing surrogacy must have both gametes from

the intending couple and donor gametes are not allowed.

2) Single Women (widow/divorcee) undergoing surrogacy must

use self eggs and donor sperms to avail surrogacy procedures.

That thereafter, on 14.03.2023 the Department of Health and

Family Welfare, Government of India came up with the

impugned notification barring use of donor gametes for surrogacy

for intending couples while allowing only Single women

(widows/divorces) to use donor sperms and own eggs for the

purpose of surrogacy.

That Rule 7 of Form 2, Section 1(d) of the Surrogacy Regulation

Rules 2022 as it stood before the Amendment Act of 2023 reads

as follows;
 8
“1. That I understand that the methods of treatment may

include:-

(d) the fertilization of a donor oocyte by the sperm of the

husband; ”

Thus the original Rule of 2022 allowed use of donor eggs for

surrogacy. A copy of Form 2 under the Surrogacy(Regulation)

Rules 2022 is annexed herewith and marked as Annexure P/2 at

page No. 32-34.

It is submitted that the impugned notification seems to be issued

in a hasty manner without application of mind and understanding

the scientific and medical implications of barring donor eggs for

surrogacy, and has abrupty been passed disentitling the

Petitioners herein and several other needy and middle class

childless couples who were otherwise eligible under the Act to

avail of surrogacy, but cannot use self eggs due to age or medical

reasons.

That some of the conditions wherein use of donor eggs are

necessitated for surrogacy include the following:

 Age of female

 Low Ovarian Reserve

 9
 Unhealthy ovaries resulting in several failed IVFs

 Women born without a uterus( MRKH syndrome) which

may ultimately leads to malfunction of ovaries

 Women with absent or loss of ovaries due to accident or

medical reasons

 Uterine/Cervical Cancer which involves removal of uterus/

ovaries

 Premature ovarian failure/ early menopause

 Women who have a rare congenital disease of the heart

posing risk to her life due to pregnancy

 Women born with rare congenital disease with a hereditary

risk of passing it on to the offspring.

10. That Petitioner No.1 is a 35 year old woman and has a simple

aspiration of begetting a child and starting a family. Petitioner

No.1 and her husband got married on 04.09.2016 and they had

been trying to conceive a baby through natural means. However,

due to an unfortunate and a severe cardiac problem, natural

conception poses a very high risk. Petitioner No.1 underwent a

Medical Termination of Pregnancy due to a high risk of Maternal

Cardiac Arrest in 2020.

 10
11. As a result of severe cardiac problems faced by her, Petitioner

No.1was advised by doctors as well as the state medical board to

avail the service of surrogacy using donor eggs since a natural

pregnancy would pose a high health risk for petitioner No.1 and

her prospective baby.

12. That on 27.02.2023, Petitioner No.1 and her husband received a

Medical Board Certificate from the District Medical Office of

Health, Ernakulam allowing them to avail surrogacy in view of

the exceptional medical history of Petitioner No.1. A copy of the

Medical Board Certificate dated 27.02.2023 is annexed herewith

and marked as P/3at page No.35-36

13. That Petitioner No.1 had an ultrasound on 24.03.2023 which

revealed that Petitioner No.1 had a reduced bilateral ovarian

reserve as well as a very low level of anti-mullerian hormone due

to which it is difficult to go ahead with ovarian stimulation and

egg retrieval procedure for her, hence she was advised to approach

a donor oocyte option. A copy of the relevant medical report dated

24.03.2023 stating the same is annexed herewith and marked as

Annexure P/4at page No.37.

 11
14. That Petitioner No.2 is 40 years old Petitioner No.2 has been

undergoing treatment at Sabine hospital, Kerala for the last 5

Years which began on 08.09.2019. Petitioner No.2 suffers from an

intrauterine rupture and her body produces very few eggs.

Through such a long period of time, they have consistently had

one dream, which is to conceive yet due to petitioner no.2’s health

problems it has not been possible. A true copy of the Treatment

detail regarding petitioner No.2 dated 14.03.2023 is annexed

herewith and marked as ANNEXURE P/5 at page 38.

15. That Petitioner No.3 is 46 years old and has undergone IUI, IVF

multiple times, hysteroscopy and Hyster laparoscopy and was

unable to conceive and was told that the next viable option is

surrogacy. Due to her age, she has a low ovarian reserve

necessitating it for her to use donor eggs. Petitioner No.3 and her

husband were granted permission to conceive through surrogacy

by the District medical office of Health, Ernakulam. A copy of

the medical board certificate dated 30.01.2023 stating the same is

annexed herewith and marked as Annexure P/6 at page No.39-

40.
 12
16. That Petitioner no. 4 is Preetha R, a 43-year-old female has been

undergoing medical treatment of infertility under the supervision

of Dr. Sabine of Sabine Hospital, Mwattupuzha, Kerala. Petitioner

No.4 suffers from VHD-Eisenmengger syndrome, a rare

congenital heart disease which makes it risky for her to go

through pregnancy. Therefore, as per the doctors order the next

step if Petitioner No.4 and her husband want to conceive through

surrogacy using donor eggs.. The certificate of medical indication

for intending couple has been annexed herewith and marked as

Annexure P/7at page no.41-43.

17. That the Central Government in the most arbitrary and unjust

manner came up with the aforesaid impugned notification on

14.03.2023, which had the effect of completely barring all the

Petitioners herein from proceeding with surrogacy, as all the

abovementioned Petitioners have no other way of having a child

through surrogacy other than using donor eggs.

18. Hence the Petitioners being aggrieved are constrained to move

this Hon’ble Court under Article 32 of the Constitution on the

following grounds:
 13
GROUNDS

a) Because the aforesaid notification is irrational and arbitrary

and creates an artificial distinction between married women

and single women (widows/divorcees) by allowing the latter

to use donor sperms for surrogacy, while expressly barring

the former category from using donor gametes (oocytes and

sperms). While on one hand the legislature is trying to

protect the rights of widows/divorcees to have a child

through surrogacy using donor sperms, on the other hand it

is disentitling married women who may have a low ovarian

reserve, or unhealthy oocytes due to age or medical

complications to avail of surrogacy using donor eggs. Thus

the aforesaid notification dated 14.03.2023 is absolutely

irrational, arbitrary and discriminatory and infringes upon

reproductive autonomy of a particular class of women, who

are married, and hence violative of Article 14 and 21of the

Constitution.

b) Because Surrogacy is a form of assisted reproduction and

gestational surrogacy cannot be done without the use

ofAssisted Reproductive Techniques (ART) i.e., In Vitro

Fertilization. Thus there is a necessity that the Surrogacy

 14
(Regulation) Act, 2021 and the ART Act, 2021 and the

corresponding Rules there under are in harmony, in order

to make the process workable and increase the success rate

of Assisted Reproduction through surrogacy. Also,

surrogacy in 99% of the cases is a necessity for desperate

childless couples rather than a choice. In fact surrogacy

comprises less than 2% of all Assisted Reproduction

nationwide. It is sometimes the last hope for fulfillment of

the greatest human desire of having a biological offspring.

It is also pertinent to mention that in majority of cases, the

intending couples are compelled to go for surrogacy as the

last resort after several failed attempts of conceiving a baby

through IVF. While the ART Act, 2021 allows use of donor

eggs for IVF procedures and lays down an elaborate

mechanism for use of donor eggs in order to prevent

exploitation of egg donors, the Surrogacy Amendment

Rules, 2023 vide the impugned notification dated

14.03.2023 specifically bars intending couples and

intending women from using donor eggs for surrogacy,

which makes the two Acts inconsistent and contradictory.

 15
c) Because the aforesaid amendment has been brought about

hastily and arbitrarily without any application of mind and

without taking into consideration that the Surrogacy Act,

2021 Surrogacy Act, 2021 under Section 4(iii)(b)(I) itself

allows married women upto 50 years of age to avail of

surrogacy. It is almost inconceivable keeping in mind the

present environmental and physiological conditions of a

woman to expect a woman of 50 years of age to have

healthy oocytes or sufficient ovarian reserve for a

successful IVF for surrogacy. Thus the amendment dated

14.03.2023, disallowing donor eggs for surrogacy is

inconsistent and contradictory to the provisions under the

principal Act.

d) Because the Central Government in notifying the impugned

Rule 7 failed to take into account that surrogacy using

donor eggs is the only hope for intending couples/ intending

women who are unfit to beget a child through natural means

due to several medical complications including but not

restricted to Uterine/Cervical Cancer which involves

removal of uterus/ ovaries, Premature ovarian failure i.e.,

where a woman hits menopause much earlier (before 40),

 16
decreased ovarian reserve where your eggs are of poor

quality usually because of age. In all these cases, a woman

will not be able to use her own eggs for surrogacy and it is

in these cases that advancement in technology and medical

sciences come to their rescue. Moreover, gamete and

embryo donation are considered safe, cost effective and

beneficial for infertile couples worldwide. Thus the above

rule is not just unconstitutional but also unscientific but also

against international best practices.

e) Because there is no denying the fact that the Surrogacy

(Regulation) Act, 2021has been enacted in order to address

and redress the problem of infertility faced by millions of

childless couples in India. It is a beneficial piece of

legislation. However, while the Surrogacy Act seeksto

protect the interest of surrogate mothers and the child born

out of surrogacy, they have miserably failed in protecting

the rights of the needy childless couples, who are the main

beneficiaries of the Act, by imposing several unreasonable

restrictions. Surrogacy is a not a crime, but a noble deed of

helping another childless couple realize their dream of

begetting a child, and hence the legislature shall strive to

 17
make it an enabling legislation for the benefit of these

needy childless couples. Having a biological child of their

own is the greatest desire of a human being. However, not

everyone is able to enjoy the wonders of parenthood. The

Surrogacy(Regulation) Act, 2021 was enacted to help needy

childless couples beget a child through the use of

advancement in medical technology. However, the

impugned Rule 7 introduced by way of the 2023

amendment fails to serve the object of the Act by

disentitling the Petitioners and other similarly situate

women who do not have healthy oocytes due to age or

medical reasons or early menopause to avail of surrogacy,

thus vitiating the entire purpose of surrogacy.

f) That it is a settled principle of law that a beneficial

legislation needs to be given a liberal interpretation as held

by this Hon‟ble Court in a catena of judgments and most

recently in X v. Principle Secretary Health and Family

Welfare Department and Anr. (2022 SCC OnLine SC

905) wherein this Hon‟ble Court observed at Para 37 of the

judgment that a beneficial legislation must be interpreted in

favour of the beneficiaries when it is possible to take two

 18
views of a legal provision. The same is reproduced herein

below;

“32. The cardinal principle of the construction of

statutes is to identify the intention of the legislature and the

true legal meaning of the enactment. The intention of the

legislature is derived by considering the meaning of the

words used in the statute, with a view to understanding the

purpose or object of the enactment, the mischief, and its

corresponding remedy that the enactment is designed to

actualise.Ordinarily, the language used by the legislature

is indicative of legislative intent. In Kanailal Sur v.

Paramnidhi Sadhu Khan,Gajendragadkar, J. (as the

learned Chief Justice then was) opined that “the first and

primary rule of construction is that the intention of the

Legislature must be found in the words used by the

Legislature itself.” But when the words are capable of

bearing two or more constructions, they should be

construed in light of the object and purpose of the

enactment. The purposive construction of the provision

must be “illumined by the goal, though guided by the

word.”Aharon Barak opines that in certain circumstances

 19
this may indicate giving “an unusual and exceptional

meaning” to the language and words used. Before we

engage in the exercise of purposive construction, we must

caution that a court's power to purposively interpret a

statutory text does not imply that a judge can substitute

legislative intent with their own individual notions. The

alternative construction propounded by the judge must be

within the ambit of the statute and should help carry out

the purpose and object of the Act in question.”

“33. The interpretation of a subordinate legislation

should be consistent with the enabling Act. A subordinate

legislation must be reasonable and in consonance with the

legislative policy. It should be interpreted in a meaningful

manner, so as to give effect to the purpose and object of the

enabling Act. The interpretation which is in consonance

with the statutory scheme and gives effect to the statute

must be adopted.”

“37. A catena of decisions emanating from this

Court, including Kerala Fishermen's Welfare Fund Board

v. Fancy Food,Bharat Singh v. Management of New Delhi

Tuberculosis Centre, New Delhi,Bombay Anand Bhavan

Restaurant v. ESI Corpn., Union of India v. Prabhakaran

 20
Vijaya Kumar, settle the proposition that progressive and

beneficial legislation must be interpreted in favour of the

beneficiaries when it is possible to take two views of a legal

provision.”

g) Furthermore this Hon‟bleCourt in KH Nazarv. Mathew K

Jacob (2020) 14 SC 126 observed:

“11. Provisions of a beneficial legislation have to be

construed with a purpose-oriented approach. The Act

should receive a liberal construction to promote its objects.

Also, literal construction of the provisions of a beneficial

legislation has to be avoided. It is the court's duty to

discern the intention of the legislature in making the law.

Once such an intention is ascertained, the statute should

receive a purposeful or functional interpretation.”

h) Because in light of the settled position of law as discussed

in the preceding paragraphs, it is imperative that Section

2(1)(zg) of the Surrogacy(Regulation) Act. 2021, be given

a liberal interpretation which are to the benefit of needy

childless couples and hence the restrictive interpretation

given by way of barring intending couples from using

 21
donor eggs is bad in law and should be read down to bring

it in consonance with the object sought to be achieved by

the Act.

i) Because this Hon‟ble Court in the case Navtej Singh Joharv.

Union of India, (2018) 10 SCC 1, held that it is the duty of the

judicial arm of the State to ensure that a sense of transformation

is ushered constantly and endlessly in the society by interpreting

and enforcing the Constitution as well as other provisions of law

in consonance with the avowed object of transformative

constitutionalism. That the impugned notification dated

14.03.2023 by restricting use of donor eggs for surrogacy allows

social morality and perceptions to prevail over constitutional

morality and is a strict deviation from the objective of

transformative constitutionalism sought to be achieved by way

of progressive interpretation of beneficial legislations.

The relevant extract is quoted herein below:

“122. The principle of transformative constitutionalism also

places upon the judicial arm of the State a duty to ensure and

uphold the supremacy of the Constitution, while at the same time

ensuring that a sense of transformation is ushered constantly

and endlessly in the society by interpreting and enforcing the

Constitution as well as other provisions of law in consonance

 22
with the avowed object. The idea is to steer the country and its

institutions in a democratic egalitarian direction where there is

increased protection of fundamental rights and other freedoms.

It is in this way that transformative constitutionalism attains the

status of an ideal model imbibing the philosophy and morals of

constitutionalism and fostering greater respect for human rights.

It ought to be remembered that the Constitution is not a mere

parchment; it derives its strength from the ideals and values

enshrined in it. However, it is only when we adhere to

constitutionalism as the supreme creed and faith and develop a

constitutional culture to protect the fundamental rights of an

individual that we can preserve and strengthen the values of our

compassionate Constitution.”

j) Because this Hon‟ble Court in X vs. Principle Secretary

Health and Family Welfare (supra) discussed in detail, the

scope and ambit of reproductive rights of a woman. The same is

reproduced herein below:

“99. The ambit of reproductive rights is not restricted to the

right of women to have or not have children. It also includes the

constellation of freedoms and entitlements that enable a woman

to decide freely on all matters relating to her sexual and

reproductive health. Reproductive rights include the right to

access education and information about contraception and

 23
sexual health, the right to decide whether and what type of

contraceptives to use, the right to choose whether and when to

have children, the right to choose the number ofchildren, the

right to access safe and legal abortions, and the right to

reproductive healthcare. Women must also have the autonomy to

make decisions concerning these rights, free from coercion or

violence.

103. In K S Puttaswamy v. Union of India,a nine-judge bench of

this Court recognized the right to privacy as a constitutionally

protected right under Article 21 of the Constitution. In

Puttaswamy (supra), this Court held that the right to privacy

enables individuals to retain and exercise autonomy over the

body and mind. The autonomy of the individual was defined as

“the ability to make decision on vital matters of concern to

life.”The judgment delivered on behalf of four judges described

the right to privacy in the following terms:

“297. … Privacy postulates the reservation of a private space

for the individual, described as the right to be let alone. The

concept is founded on the autonomy of the individual. The

ability of an individual to make choices lies at the core of the

human personality. The notion of privacy enables the individual

to assert and control the human element which is inseparable

from the personality of the individual. The inviolable nature of

 24
the human personality is manifested in the ability to make

decisions on matters intimate to human life. The autonomy of

the individual is associated over matters which can be kept

private. These are concerns over which there is a legitimate

expectation of privacy. The body and the mind are inseparable

elements of the human personality. The integrity of the body and

the sanctity of the mind can exist on the foundation that each

individual possesses an inalienable ability and right to preserve

a private space in which the human personality can develop.

Without the ability to make choices, the inviolability of the

personality would be in doubt.”

(emphasis supplied)

“104. Importantly, Puttaswamy (supra) also deals with facets of

reproductive autonomy. Chelameshwar, J. held that a

“woman's freedom of choice whether to bear a child or abort

her pregnancy are areas which fall in the realm of privacy.”93

This Court recognized the right to bodily integrity as an

important facet of the right to privacy. Puttaswamy (supra)

considered Suchita Srivastava v. Chandigarh Administration94

to reiterate that the statutory right of a woman to undergo

termination of pregnancy under the MTP Act is relatable to the

constitutional right to make reproductive choices under Article

21 of the Constitution.”
 25
k) Because “Gestational Surrogacy” has been defined in the

explanation to Section 4(ii)(b) as follows:

Explanation.—For the purposes of this sub-clause and item (I)

of sub- clause (a) of clause (iii) the expression “gestational

surrogacy” means a practice whereby a surrogate mother carries

a child for the intending couple through implantation of embryo

in her womb and the child is not genetically related to the

surrogate mother;

The definition of gestational surrogacy merely mandates that

the child should not be genetically related to the surrogate

mother, which seems to be an appropriate step taken by the

government in preventing parentage issues for the child born

out of surrogacy as well as the emotional well being of the

surrogate mother.

Section 2(1)(zg) defined “surrogate mother” as “(zg) “surrogate

mother” means a woman who agrees to bear a child (who is

genetically related to the intending couple or intending woman)

through surrogacy from the implantation of embryo in her

womb and fulfils the conditions as provided in sub-clause (b) of

clause (iii) of section 4; “Moreover, Rule 7, Section 1(d) of the

Surrogacy Regulation Rules 2022 as it stood before the

Amendment Act of 2023 reads as follows:

 26
“1. That I understand that the methods of treatment may

include: …

(d) the fertilization of a donor oocyte by the sperm of the

husband;

A bare reading of the aforesaid provision in the 2022 Rules

would make it clear that the intention of the legislature while

framing the provision was never to debar intending couple from

use of donor eggs and was very much allowed under the

Surrogacy Rules, 2022. In fact use of donor eggs is sometimes a

medical necessity for an intending couple and should be

allowed. A correct interpretation of the aforesaid provision

under Section 2(1)(zg) would have been that the child is

genetically related to either one of the intending couple, rather

than mandating the child to be genetically related to both,

which is also in consonance with the intent of the legislature.

It is further submitted that the impugned notification dated

14.03.2023 seems to be issued in a hasty manner without

application of mind and without understandingthe scientific and

medical implications of barring donor eggs for surrogacy, and

have abruptly disentitled the Petitioners herein and several other

needy and middle class childless couples who are otherwise

eligible under the Act to avail of surrogacy but do not have

 27
healthy oocytes due to medical and other reasons for a

successful IVF leading to surrogacy.

19. That balance of convenience lies in favour of the Petitioners herein.

20. The Petitioners have not filed any other similar writ petition before this

Hon‟ble Court or before the Hon‟ble High Courts for similar reliefs.

21. That the Petitioners herein will suffer irreparable harm and injury if

the prayers are not granted.

PRAYERS:

It is most respectfully prayed that this Hon’ble Court may graciously be

pleased to:

a) Issue a writ in the nature of mandamus of any other appropriate

writ, direction or order to allow the Petitioners herein to proceed

with surrogacy using donor eggs in light of their exceptional

medical conditions stated hereinabove;

b) Issue an appropriate Writ, order or direction to strike down the

notification dated 14.03.2023 issued by the as being arbitrary,

irrational and unconstitutional;

 28
c) Issue an appropriate Writ, order or direction to read down the

provision of Section 2(1)(zg) of the Act to allow the use of donor

gametes by intending couples/Intending woman;

d) pass any other order(s) as this Hon’ble Court may deem fit and

proper in the facts of the case.

AND FOR THIS ACT OF KINDNESS YOUR HUMBLE

PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY

(MOHINI PRIYA)
ADVOCATE FOR THE PETITIONERS
Drawn On: 01.04.2023
Filed On: 12.04.2023
 29

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAI JURISDICTION

WRIT PETITION ICTVILI NO. OF 2023

IN THE MATTER OF:
SREELEKSHMI . & ORS. ... Petitioner
VERSUS

.,.Respond€iits
UNION OF INDIA & ORS.

AFr.IDAVIT

I, SREELEKSHML C , W/o. Rajesh Kumar. p J age about

35 years R/o. Thonipiamkeezhil padinjarethil, Malnam
Nagar P O, Perumputickal. paldalam, pathanarnthitta,
Kerala- 689501 do hereby solemnly affirrn ald declare as
follows:
and duly authorised by the other petitioners
1 . That I am Petitioner No.1
in inthe
the abovementioned Writ
Petition ald I am well conversant with the facts and
circumstalces of the present case and as such
competent to swear this affidavit.

2 I state that I have read ald understood the contents of

the accompanying List of dates from page B to N Writ
P,
petition from para 1 to 21 _ pages1 to _30 and I.As.
which have been drafted under my instruction and
TA t.JI at I have read and understood the same and that i
iliS.1 G
te that the facts stated therein are true to the best
lrla:AdoorTaluk
i
Rq. tlo. gAU)/pTA of knowledge and belief d rest are submissions
Epry&i: &l0',{)2S

ALPHON G.M
F ADVOCATE & NOTARY
ADOOR, PATHANAI'THITTA
IGRALA" I'{DIA
 30
based on legal advice which I believe to be true and
correct

Isay that the Annexures annexed along with the Writ

petition are true copy of its respective original.

4 I that the averments of facts stated herein above

sa1.
are tlxe to my knowledge, no part of it is false and
nothing material has been concealed therein.

M.
DEPONENT
VERIFICATION:
-.
^ t- t
Verifred at Qrl l-
on this .tlti:r*l 2023 that
dav of
the contents of my above affidavit are true ald correct to the
best of my knowledge arld nothing material has been
concea-1ed there from.

DEPONENT
@-
Sr*ffi!'d$ 3ffil:;.:l ..1d dd.d htt -
0 mJ-[a.r
ftXr.

& ALPHON P.G. MBA" U.B

ADVOCATE & NOTARY
Oom$shl, axples o, AD@R, PATHANAi'THITiA
fr, l0.2tzl KERALA, INDIA
 Annexure P/1
2 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(i)]
31
MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health Research)
NOTIFICATION
New Delhi, the 14th March, 2023
G.S.R.179(E).—In exercise of the powers conferred by section 50 of the Surrogacy (Regulation) Act, 2021
(47 of 2021), the Central Government hereby makes the following rules, further to amend the Surrogacy (Regulation)
Rules, 2022, namely:-
1. (1) These rules may be called the Surrogacy (Regulation) Amendment Rules, 2023.
(2) They shall come into force on the date of their publication in Official Gazette.
2. In Form 2 under rule 7 of the Surrogacy (Regulation) Rules, 2022, the existing Para 1 (d) stands omitted and shall
be substituted as under:-
1. (d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is
not allowed;
(II) Single woman (widow/divorcee) undergoing Surrogacy must use self eggs and donor sperms to
avail surrogacy procedure.
[F. No. U.11019/15/2022-HR]
GEETA NARAYAN, Jt. Secy.

Note : The Surrogacy (Regulation) Rules, 2022 were published in the Gazette of India, Extraordinary, Part II,
Section 3, sub-section (i) vide G.S.R. 460 (E) dated 21st June, 2022 and the Surrogacy (Regulation)
Amendment Rules, 2022 were published in the Gazette of India, Extraordinary, Part II, Section 3, sub-
section (i) vide G.S.R. 772 (E) dated 10th October, 2022.

Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054. SARVESH KUMAR
Digitally signed by SARVESH
KUMAR SRIVASTAVA
SRIVASTAVA
Date: 2023.03.14 22:19:00 +05'30'

//true copy//
 Annexure P/2
Surrogacy Rules
32
Form 2
Consent of the Surrogate Mother &
Agreement for Surrogacy

I, ____________________________________ (the woman), aged…………. years

with the consent of my husband* (name), of
__________________________________________________________________
(address)…………………………………. (Aadhar Number), having ……. (Number of
children) child/ children…… (age in years) of my own have agreed to act as a
surrogate mother for Intending couple/intending women Name Husband
Name –------------Wife/------------Intending women Age Husband Age----------
---------- Wife/Intending women---------------------------- had a full discussion with Dr.
____________________________________ of the Surrogacy clinic on
_______________________ in regard to the matter of my acting as a surrogate
mother for the child/children of the above couple.

1. That I understand that the methods of treatment may include:

a) Stimulation of the genetic mother for follicular recruitment
b) The recovery of one or more oocytes from the genetic mother by
ultrasound-guided oocyte recovery or by laparoscopy.
c) The fertilization of the oocytes from the genetic mother with the sperm of
her husband.
d) The fertilization of a donor oocyte by the sperm of the husband.
e) The maintenance and storage by cryopreservation of the embryo
resulting from such fertilization until, in the view of the medical and
scientific staff, it is ready for transfer.
f) Implantation of the embryo obtained through any of the above
possibilities into my uterus, after the necessary treatment if any.

2. That I have been assured that the genetic mother and the genetic father
have been screened for HIV and hepatitis B and C and other sexually
transmitted diseases before oocyte recovery and found to be seronegative
for all these diseases. I have, however, been also informed that there is a
small risk of the mother or / and the father becoming seropositive for HIV
during the window period.
3. That I consent to the above procedures and the administration of such drugs
that may be necessary to assist in preparing my uterus for embryos transfer,
and for support in the luteal phase.
4. That I understand and accept that there is no certainty that a pregnancy will
result from these procedures.

Page 23 of 69
 Surrogacy Rules
33
5. That I understand and accept that the medical and scientific staff can give no
assurance that any pregnancy will result in the delivery of a normal and
living child/children.
6. That I am unrelated/ related (relation) _____________________________
to the couple (the would-be genetic parents).
7. That I have worked out medical expenses and conditions of the surrogacy
with the couple in writing and an appropriately authenticated copy of the
agreement has been filed with the clinic, which the clinic will keep
confidential. An insurance coverage of such amount and in such manner as
will be prescribed in favour of the surrogate mother for a period of thirtysix
months covering postpartum delivery complications from an insurance
company or an agent recognised by the Insurance Regulatory and
Development Authority established under the Insurance Regulatory and
Development Authority Act, 1999;
8. That I agree to relinquish all my rights over the child and hand over the
child/children to __________________________, or _____________ and
_____________________ in case of a intending couple, or to
______________________________ in case of their separation during my
pregnancy, or to the survivor in case of the death of one of them during
pregnancy, or to --------------------------------------- in case of death of both of
them, or to --------------------------------------------------- in case of guarantor
intending couple/ women , as soon as I am permitted to do so by the
hospital / clinic / nursing home where the child/ children are delivered.
9. That I have been provided with the written consent of all of those name(s)
mentioned above.
10. That I undertake to inform the Surrogacy Clinic, ______________________,
of the result of the pregnancy.
11. That I take no responsibility that the child /children delivered by me will be
normal in all respects. I understand that the biological parent(s) of the child/
children has / have a legal obligation to accept the child/ children that I
deliver and that the child/ children would have all the inheritance rights of a
child/ children of the biological parent(s) as per the prevailing law.
12. That I will not be asked to go through sex determination tests for the child/
children during the pregnancy and that I have the full right to refuse such
tests.
13. That I understand that I would have the right to terminate the pregnancy in
case of any complication as advised by the doctors, under the provisions of
the MTP Act;
14. That I certify that (a) I have not beared any child through surrogacy before.
15. That I have been tested for HIV, hepatitis B and C and shown to be
seronegative for these viruses just before embryo transfer.
16. That I will not have intercourse of any kind once the cycle preparation is
initiated.

Page 24 of 69
 Surrogacy Rules
34
17. That I certify that (a) I have not had any drug intravenously administered into
me through a shared syringe; and (b) I have not undergone blood
transfusion in the last six months.
18. That I also declare that I will not use drugs intravenously, or undergo blood
transfusion excepting of blood obtained through a certified blood bank on
medical advice.
19. That I undertake not to disclose the identity of the party seeking the
surrogacy.
20. That In the case of the death or unavailability of any of the party seeking my
help as the surrogate mother, I will deliver the child/children to
______________________________ or ____________________________
in this order; I will be provided, before the embryo transfer into me, a written
agreement of the above persons that they will be legally bound to accept the
child/ children in the case of the above-mentioned eventuality. (If applicable)
My husband (Name - ) (Aadhar car number-) has approved my acting
as a surrogate.

(Strike off if not applicable.)

Endorsement by the Surrogacy Clinic

I/we have personally explained to _____________________ and ______________

the details and implications of his / her / their signing this consent / approval form,
and made sure to the extent humanly possible that he / she / they understand these
details and implications.

Signed:
(Surrogate Mother)

Name, address and signature

of the Witness from the Surrogacy clinic

Name and signature of the Doctor

Name and address of the Surrogacy Clinic

Dated:

//true copy//

Page 25 of 69
 35
Annexure P/3
 36
Annexure P/4
DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM

Park avenue, ernakulam-682011

Ph: 0484-2360802, email: dmohekmoffice@gmail.com

No. C5-25166(07)/2022 Dated: 27.02.2023

Medical Board Certificate

We, the members of the Medical board constituted by the District

Medical Officer (Health), Ernakumal examined the history and the
medical certificate of the intending couple Sri. Rajesh Kumar &
Smt. Sreelekshi C., Padaniathu Puthen veddu Kochalumoodu,
Njakkunilam P.O., Vallidoce, Panthanamthitta-689656 Now
residing at Merathu House, Thottumugham P.O., Aluva. As per
medical certificates produced Smt. Sreelekshmi C. is suffering
from Tetralogy of Fallot and large VSD. She underwent MTP-2
years back due to her medical illness as it is life threatening.
Considering the above facts surrogacy may be permitted for the
intending couple in strict compliance to the last ART Act.

Sd/- Sd/- Sd/-

Dr. Sreesevi. S. Dr. Prethibha. C, Dr. Anilkumar. V.D.
District Medical Officer (H) Senior Consultant (OB&G) Chief Consultant (Pediatrics)
Ernakulam General Hospital General Hospital
Ernakulam Ernakulam

//true copy//
 37

Annexure P/4

//true copy//
 Annexure P/5
38

//true copy//
 39
Annexure P/6

DISTRICT MEDICAL OFFICE OF HEALTH, ERNAKULAM

PAl~I, AVENUE, ~ l~NA l{U LA M 6K2U 1 1.
V 0484 2360M02 i , J dnn ohi.:krnoflicd11jgmwl com
Dated: 30.01.2023
No. CS- CS-25166(31-2022

Medical Board Certificate

We·, the members of the MedicaJ board constituted by the District

Medical Officer (Healthl, Ernakulam exam.ined the history and Lhc
medical certificate of the intendmg couple Sri.Babu.T.R. & Smt. Prabha
Babu, Krishnakripa, SouU, Gate, A1nbalappuzha, Alappuzha DisLrict.
As per U,e m ed.ical certificate, Sm l. Prabha Babu underwent M ;' / ICSI
procedure on multiple times, but a U failed . Since Smt. Prabha Babu had
multiple failures ofIVF/ lCSI, surroga cy may be done in strict compliance
Lo Lh e lasL ART Act for them .

.'.)

EJ,Stccdcvl.S Dr. Prothlbha .C, Dr.Ani'.Utummr. V I>

01.triot Mcdlc:lll Officer IHI, Scnfo r Con5Ulli1n •L (OB&GI Chief Consul tan LI Paedia t rksl
ErnnJculAm Genera.I Hoa;pilal , Ckocral HoipltaJ.
Ertll\ lru lo. a, Erna.kub.m

•
Pit
 40
Annexure P/6
DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM

Park avenue, ernakulam-682011

Ph: 0484-2360802, email: dmohekmoffice@gmail.com

No. C5-25166(03)/2022 Dated: 30.01.2023

Medical Board Certificate

We, the members of the Medical board constituted by the District

Medical Officer (Health), Ernakumal examined the history and the
medical certificate of the intending couple Sri. Babu T.R. & Smt.
Prabha Babu, Krishnakripa, South Gate, Ambalapuzha, Alappuzha
District. As per medical certificates produced Smt. Prabha Babu
underwent IVF/ICSI procedure on multiple times, but all failed.
Since Smt. Prabha Baby Bahu had multiple failure of IVF/ICSI,
surrogacy may be done in strict compliance to the last ART Act for
them.

Sd/- Sd/- Sd/-

Dr. Sreesevi. S. Dr. Prethibha. C, Dr. Anilkumar. V.D.
District Medical Officer (H) Senior Consultant (OB&G) Chief Consultant (Pediatrics)
Ernakulam General Hospital General Hospital
Ernakulam Ernakulam

//true copy//
Annexure P/7
41
42
 43

//true copy//
 44
SECTION – X

IN THE SUPREME COURT OF INDIA

Civil / Criminal/Appellate/Original/Jurisdiction

WP (C) NO. ……………. OF 2023

IN THE MATTER OF:

SREELEKSHMI C. & ORS.

____________________________________________ PETITIONER(S)

VERSUS
UNION OF INDIA & ORS.
____________________________________________ RESPONDENT(S)
INDEX
_________________________________________________________________________
S.No. Particulars Copies Court Fees

1. Listing Proforma
2. List of Dates
3. WP with affidavit
4. Annexures
5. Vakalatnama

(MOHINI PRIYA)
Advocate for the Petitioners
Ch. 01, C.K.Daphtary Block,
Supreme Court of India, New Delhi
Email: priya.mohini@gmail.com
Code- 2977
Mob: 99713 02878
Dated: 10.04.2023
12.04.2023
 V A KA L A T N A M A 45
IN THE SUPREME COURT OF INDIA
CIVIL / CRIMINAL / ORIGINAL / APPELATE JURISDICTION

lnrRIT PETITION (Ct NO. OF 2023

IN TIIE MATTER OF:

Srcelekshmi C.& Ors.
inTITIONERts>

VASUS
Union of India & Ors.
RESPONDENT(S)

I, ..S.R.EELE1<.Sliml..C=. the Petitioner in the atove Petition do hereby appoint and

retain MS. MOHINI PRIYA Advocate Supreme Court of India, to act and appear for me / us
in the above Appeal / Pet`ition / Reference ~and en my / our behalf to conduc-tchand prosecute (
or defend ) the same and all proceedings that may be taken in respect of any application
connected with the sanie or any decree or order passed therein including proceedings in
taxation and application for REVIEW to file and obtain return of documents and to deposit
and receive money on my / our behalf in the said Appeal / Petition / Reference and
application of review and to represent me / us and to take all necessary steps on my/ our
behalf in the above matter.
I / We agree to ratify all acts done by the aforesaid Advocate in pursuance of this
authority.
Dated this the _1 Day of April 2023

Accepted and Identifled/Certify

#@kehfu`rc
(MOHrm pRlyA) PETITIONER
Advocate-Ofi-Record
Supreme Court of India 1.•Sreelekshmi. C

REM0 0F APPEARANCE
TO,
The Registrar
Supreme Court of India
New Delhi- I I 000 I .
Sir, please enter my appearance for the above named Petitioner(s)/ appellant(s) /
Respondent(s) / Intervener(s) in the above Petition /Appeal / Reference.
Thaling you. Yours sincerely

(MOHINI PRIYA)
Advocate for Petitioner
Dated: 12.04. 2023 Code No.- 2977
 46

2.•Smitha C

12.
 47
VAKALATNAMA
IN THE SUPREME COURT OF INDIA
C IVIL / CRIMINAt. / ORIGINAL / APPELATE JtrRlSDIC.l'lON

WRIT PETITION (C) NO. oF 2023

IN THE MATTER OF:

Sreelekshmi C.& Ors.
PF,'II'IIONER(S)

VERSUS
Union of India & Ors.
RESPONDENT(S)

€4.. .H.4.,..R..,. th. Petitioner in the above Petition do hereby appoint and
retain MS. MOHINI PRIYA Advocate Supreme Court of India. to act and appear tbr me / us
in the above Appeal / Petition / Reference and on my / our behalfto conduct and prosecute (
or def'end ) the same and all proceedings that may be taken irr respecl of any application
connected with the same or any decree or order passed therein including proceedings in
taxation and application for REVIEW to file and obtain return of documents and to deposit
and receive money on nry / our behalf in the said Appeal / Petition / Ret-erence and
application of revier.v and to represent me / us and to take all necessary steps on my/ our
behalf in the above nlatter.
I/ We agree to ratify all acts done by the aforesaid Advocate in pursuance of this
aulhority. .,tJ^
Dated this lhe Zl- Day of April 202-i

Accepted and Identi lied/Certi 11

(MOHINI PRIYA) PETITIONER

Advocate-On-Record
Supreme Court of India 3.•Prabha R.

MtrMO OFAPPEARANCE
To,
The Registrar
Supreme Court of India
New Delhi-l 10001 .
Sir, please enter rnv appearance for the above named Petitioner(s)/ appellant(s) /
Respondent(s) / lntervener(s) in the above Petition /Appeal r'Reference.
Thanking you. Yours sincerely

(MOHTNTPRTYA)
Advocate for Petitioner
Dated:12..04.2023 CodeNo- 2977
 48

4.•Preetha R

12.04.2023