In a big respite to couples who want to become parents, the Centre has amended the Surrogacy (Regulation) Rules, 2022, allowing the use of a donor gamete (meaning: ova or egg cells in females and sperm in men) if one of the partners is certified of having a medical condition that prevents the use of his or her gametes. However, the Surrogacy (Regulation) Amendment Rules, 2024, notified by the government, state that a District Magistrate Board has to certify that either husband or wife suffers from such a medical condition. The earlier rules required the couple undergoing surrogacy to compulsorily have both gametes of their own.
The Union health ministry amended the rules on February 22 after the Supreme Court asked in January why the Centre was not taking a decision on the matter when the court was flooded with petitions from women who wished to be mothers. Multiple appeals were filed in the court after the amendment in Rule 7 on surrogacy was enacted on March 14 last year. Rule 7, which deals with 'Consent of the Surrogate Mother and Agreement for Surrogacy', laid that both the egg and the sperm should come from the intending couple.
The SC's Intervention
The Supreme Court in a case, while granting relief to a woman petitioner, had found fault with Rule 7. It allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a rare congenital disorder that affects the production of eggs and can cause infertility, to use donor eggs for surrogacy. Subsequently, the court permitted several other women petitioners based on their medical reports to get donor eggs and go ahead with surrogacy despite the impugned rule prohibiting it.
Last October, in a similar case, the Delhi High Court had also said that the Centre's March 14 notification prohibiting donor gametes in surrogacy seemingly encroached upon the rights of a married infertile couple intending to be parents by "denying them access to legally and medically regulated procedures and services".
In the Bombay High Court too, another petition concerning the same issue was filed in 2023. The court observed that couples having problems related to fertility would not be able to avail of surrogacy if donor gametes were barred.
Not All Medical Conditions Are Covered Under The Present Law
Doctors are upbeat after the government's latest decision. "According to me, surrogacy is the right of a woman. Those women suffering from infertility due to medical conditions have the right to carry pregnancy with the help of surrogacy," says Dr Sanjay Patel, senior gynaecologist, Mayflower Hospital, Ahmedabad.
The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) (ART) Act, 2021, were framed to regulate the haphazard reproductive medicine industry, setting strict guidelines for surrogacy and gamete donation. In the absence of any guiding law, the country had become an international surrogacy hub with reports of exploitation of surrogate mothers, unethical practices, abandonment of children born out of surrogacy, import of human gametes and embryos, etc, raising concerns.
The acts define who can access ART procedures, including in-vitro fertilization (IVF). The law allows only altruistic surrogacy where no money is involved and where a surrogate mother is genetically related to those seeking a child. Under the new act, only a close relative of the couple can be allowed to undergo surrogacy.
The new regulations also defined operational standards for clinics and barred commercial surrogacy. Any violation of the law would attract a jail term of up to 10 years and a fine of up to Rs 10 lakh.
The Modified Rules
The modified Para 1(d) of the same rule now states: "Couple undergoing surrogacy must have both gametes from the intending couple. However, in a case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from a medical condition necessitating the use of a donor gamete, then surrogacy using a donor gamete is allowed subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple."
It further says, "single women (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure."
Mohini Priya, advocate, Supreme Court, says, "This amendment comes as a huge relief to thousands of childless couples, who would inevitably require donor gametes due to their medical condition, resulting in recurrent failed IVFs, miscarriages or any other condition which could pose a threat to life in case of a pregnancy."
She adds, "As per Rule 14 of the surrogacy Rules, 2022, only couples who fall within the medical conditions prescribed therein can go for surrogacy. In that respect, almost 70-80% of couples who avail surrogacy under the Act would require donor gametes, and hence, this amendment was much needed."
A Good Step, But A Few Gaps Remain
The Centre may have given reprieve to intending couples who fall within the new definition to embrace parenthood, but the current law bars unmarried women from having children via surrogacy. In another case, the bench, comprising Justices B.V. Nagarathna and Augustine George Masih, expressed their reservation while hearing the petition of a 44-year-old unmarried woman who approached the court seeking permission to become a mother through surrogacy. The bench stated that the institution of marriage needed to be "protected" in the country, unlike the West, where it was normal to have children without getting married.
In fact, a batch of Public Interest Litigations questioning several provisions under the Surrogacy (Regulation) Act and the ART (Regulation) Act for being discriminatory against men and women based on their age, marital status and sexual orientation, is pending in the court. Presently, the Surrogacy (Regulation) Act stipulates only those women who are widowed or divorced and between the ages of 35 to 45 years can avail of the surrogacy route.
"The Surrogacy Act, 2021, does not allow single unmarried women to avail surrogacy, although they can go for IVF treatments. Similarly, single men are right now outside the purview of the Act. However, both these issues are under consideration by the Supreme Court, which will be decided in due course," says Ms. Priya.
Lifestyle, stress, shrinking family support, pollution, and erratic working hours are proving to be detrimental to the fertility of couples. While progress in the field of medical science has helped people become biological parents, there are thousands whose medical conditions compel them to lean on external interventions like surrogacy to fulfil their parental aspirations. With their progressive legislation, the central government and the apex court have brought relief and hope to them.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author.