The Supreme Court has allowed high courts to decide pleas seeking surrogacy citing medical complications not contemplated under the law based on its interim order in October even as the challenge to the surrogacy rules remains pending. The October order allowed surrogacy in the cases where women were unable to produce eggs due to certified medical abnormalities.

“We find that following the said order [of October and subsequent orders] several other applications are being filed in the existing pending writ petitions. We find that such a tendency would not be in the interest of the applicants…Rather, the interest of justice and access to justice would be subserved if the persons similarly placed to the other applicants in whose cases interim orders have been passed by this court are enabled to approach the jurisdictional high court for seeking similar reliefs,” said a bench of justices BV Nagarathna and Augustine George Masih on February 5.

Couples were barred from undergoing surrogacy using donor gametes following an amendment to rules in March last year. This meant both the egg and sperm must be of the intending couples. In the case of single women, only donor sperm was permitted.

The Supreme Court said the pendency of the writ petitions before it would not come in the way of the high court in considering them. “…if these applicants approach the jurisdictional high court, their writ petitions would be considered having regard to the interim orders passed by this court…”

On October 18, the Supreme Court considered an exception to the rules citing medical disorders that made women incapable of producing oocytes. District medical boards confirmed the claims. Eight women got the go-ahead for surrogacy in October while the remaining four on February 6.

The court began hearing on February 5 the main petition challenging the rules under the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act.

Additional solicitor-general Aishwarya Bhati agreed with the Supreme Court that the high courts can be asked to proceed in accordance with the October 18 order if the applicants are similarly placed. The Union government cited the interim order and informed the court last month a committee of experts was examining tweaking the rules accordingly.