The story so far: The Union government on February 21 modified the Surrogacy (Regulation) Rules, 2022, to permit married couples to use donor eggs or donor sperm for surrogacy — a move that provided a big relief to those with medical complications. This revoked a previous amendment made in March 2023 that banned the use of such donor gametes. The modification in the surrogacy rules came more than a month after Additional Solicitor General Aishwarya Bhati apprised the Supreme Court that the government was considering changes in the amendment brought in last year to allow married couples to use donor gametes for surrogacy in case they suffered from medical ailments that made it difficult to conceive.
What does the new amendment state?
On March 14 2023, Form 2 (Consent of the Surrogate Mother and Agreement for Surrogacy) of the Surrogacy Rules read with Rule 7 was amended to stipulate that donor eggs could not be used for gestational surrogacy of an intending couple. This has now been amended by a notification of the Ministry of Health and Family Welfare allowing married couples to use a donor gamete on the condition that a District Magistrate Board certifies that either the husband or the wife suffers from a medical condition. However, the notification outlines that the child to be born through surrogacy must have at least one gamete from the intending parents. This implies that a married couple where both partners are unable to use their gametes due to an existing medical condition cannot opt for surrogacy. The change is however not applicable to widowed or divorced women. The modified rules state — “Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.”
What did the Supreme Court say?
Last year, the 2023 amendment was challenged before the Supreme Court by a woman suffering from the Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome. Medical board records reflected she was unable to produce her eggs due to absent ovaries or a uterus. The petition contended that the amendment violated a woman’s right to parenthood and contradicted Sections 2(r) and 4 of the Surrogacy Act, 2021 (2021 Act) which recognised the situation when a medical condition would require a couple to opt for gestational surrogacy to become parents. It was also pointed out that the petitioner had begun the surrogacy process months before the amendment, which cannot be implemented retrospectively. The Centre, on the contrary, argued that the use of donor eggs was exempted since surrogacy cannot be availed of under existing laws unless the child is “genetically related” to the intending couple.
Staying the operation of the law, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan highlighted that it prevents intending couples from achieving parenthood through surrogacy which is prima facie contrary to the objective of the parent law — the 2021 Act. The court also recognised that the law permitting gestational surrogacy was “woman-centric” as it was a woman’s choice to have a surrogate child owing to existing medical or congenital conditions. Such conditions included the “absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for her to carry a pregnancy to term or would make the pregnancy life-threatening”. Agreeing with the petitioner’s submissions, the court acknowledged that Rule 14(a) specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy. While addressing the government’s contentions, the Bench underscored — “In this regard, it may be noted that the expression ‘genetically’ related to the intending couple has to be read as being related to the husband when Rule 14(a) applies”.
Last month, the Centre informed a bench of Justices B.V. Nagarathna and Sanjay Karol that following its observations, the amendment barring married couples from availing donor gametes was under active reconsideration.
Can single women avail of the same?
The regulatory change is however not applicable for single women as it specifies that a widow or a divorcee undergoing surrogacy must use self-eggs and donor sperm. This comes even after questions are being raised in Indian courts over the exclusion of single women from using surrogacy to have children and the resultant discrimination. A petition has been filed in the Delhi High Court by a 44-year-old unmarried woman challenging provisions of the 2021 Act on the ground that the restrictions are violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution. Questioning the association of marital status with the eligibility for surrogacy, the petitioner has pointed out that at her age, the use of donor eggs is recommended by medical practitioners. To be genetically connected, the petitioner’s brother has consented to donate his male gametes, the court was told. Experts have also criticised the restrictions on access to surrogacy by single persons, live-in couples, and LGBTQ couples.
