The Delhi High Court has stated that excluding "couples unable to conceive naturally" from the advantages of surrogacy appears to infringe upon their fundamental right to parenthood, as it prevents them from accessing legally and medically regulated procedures and services.

The court's decision was made in response to a petition submitted by a married couple who were displeased with an alteration in surrogacy legislation that essentially restricted infertile couples from utilizing surrogacy services unless both partners could produce gametes.

The couple who filed the petition argued that prior to the March 14 notification from the Central government, which introduced the exclusion in question by modifying paragraph 1(d) of Form 2 under rule 7 of the Surrogacy (Regulation) Rules, 2022, they were actively seeking a surrogate because the wife was determined to be infertile. However, due to this change, they claim to have lost their fundamental right to parenthood permanently, and their fertilized embryo is now considered "legally nonviable."

A bench led by Chief Justice Satish Chandra Sharma emphasized that the central issue in this case revolves around the "evident discrimination experienced by infertile couples" which is determined by their capacity to generate viable eggs.

The court's recent interim order in the matter clarified that if a wife can produce viable eggs but is unable to carry a gestational pregnancy, the intending couple can utilize surrogacy procedures in accordance with the law. However, if the wife cannot produce viable eggs, they would not be allowed to become parents through surrogacy.

"In the initial assessment, the challenged notification appears to infringe upon the fundamental rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures and services," stated the bench, also including Justice Sanjeev Narula.

The court also pointed out that the notification lacks any evident rational justification, foundation, or clear criteria for distinguishing between citizens on the basis of their ability to produce gametes when it comes to availing surrogacy services.

In its interim order, the court granted permission to the petitioners to proceed with the gestational surrogacy process using their preserved embryos. These embryos were created by fertilizing donor oocytes with the husband's sperm before the contentious notification was issued.

The court affirmed that the amendment should not be permitted to retroactively declare their legally fertilized embryo as unviable. The petitioners have a vested and constitutionally protected right to parenthood.

The petitioners filed their case in the high court earlier this year, contending that the "restrictive condition" imposed by the law violates their fundamental rights as per Articles 14 and 21 of the Constitution. They argue that this condition also deprives them of their fundamental civil and human right to parenthood and a fulfilling family life.

The plea asserts, "The petitioners have a vested right to parenthood, and the amendment should not be permitted to render their legally fertilized embryo unviable."

The petition argued that the contested notification, which aims to limit surrogacy services to couples capable of producing their own gametes, infringes upon their fundamental rights under Article 21. It further contended that the genetic purity of the embryo and fetus should not be a basis for denying infertile couples their right to parenthood. If that were the case, adoption would also be impermissible in the eyes of the law.