Amendment to Surrogacy Rules

• 28 Feb 2024

For Prelims: Surrogacy, Surrogacy (Regulation) Act 2021, Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, Ban on Commercial Surrogacy

For Mains: Laws Related to Surrogacy in India and Recently Amended Provisions

Source: IE

Why in News?

Recently, the Indian government has amended the Surrogacy (Regulation) Rules, 2022 and allowed married couples to use an egg or sperm of a donor in case one of the partners is suffering from a medical condition.

• This overturned a previous amendment made to the rules in March 2023 that banned the use of donor gametes.

What are the Major Provisions of the Amended Surrogacy Rules?

• Background: The March 2023 amended rules only permitted the use of the intending couple's own gametes, barring couples with specific medical conditions from having biological children through surrogacy.
  • These restrictions caused distress and challenged the right to parenthood for affected couples.
  • It faced legal challenges in the Supreme Court by a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a congenital disorder causing infertility.
    • The Supreme Court expressed skepticism regarding the efficacy of these regulations, asserting that such rules undermined the fundamental objectives of surrogacy.
• Recent Amended Provisions: It allows surrogacy with donor gametes if either spouse in the intending couple is certified by the District Medical Board to require donor gametes due to a medical condition.
  • This implies that couples still cannot opt for surrogacy if both partners have medical issues.
  • For divorced or widowed women opting for surrogacy, it mandates the use of the woman's own eggs alongside donor sperm.

What is Surrogacy?

• About: Surrogacy is an arrangement where a woman, known as the surrogate mother, agrees to carry and deliver a baby for another individual or couple, known as the intended parents.
• Types:
  • Traditional Surrogacy: Traditional surrogacy involves using the intended father's sperm to fertilise the surrogate's egg.
    • The surrogate carries the pregnancy to term, and the resulting baby is biologically related to the surrogate mother and the intended father.
  • Gestational Surrogacy: In gestational surrogacy, the baby is not biologically related to the surrogate.
    • An embryo, created using the intended father's sperm (or donor sperm) and the biological mother's egg (or donor egg), is implanted into the surrogate's uterus for her to carry to term.
• Surrogacy Arrangements:
  • Altruistic Surrogacy: It refers to a surrogacy arrangement where the surrogate does not receive financial compensation beyond reimbursement for medical expenses and other related costs.
    • The primary motivation for the surrogate in altruistic surrogacy is typically to help another individual or couple achieve their dream of having a child.
  • Commercial Surrogacy: It involves a contractual agreement where the surrogate mother receives financial compensation beyond just reimbursement for medical expenses and other costs associated with the pregnancy.
    • This compensation may vary depending on factors such as location, legal regulations, and the specific terms of the surrogacy agreement.

What are the Other Provisions Related to Surrogacy in India?

• Permissibility: Under the Surrogacy (Regulation) Act 2021, Surrogacy is permissible only for altruistic purposes or for couples with proven infertility or disease.
  • Commercial surrogacy, including for sale or exploitation purposes, is strictly prohibited.
• Eligibility Requirements for Couples: Couples must be married for at least 5 years.
  • The wife must be aged between 25-50 years, and the husband between 26-55 years.
  • The couple must not have any living child, whether biological, adopted, or through surrogacy, except in cases of children with disabilities or life-threatening disorders.
• Surrogate Mother Criteria: The surrogate mother must be a close relative of the couple.
  • She must be a married woman with at least one child of her own.
  • Her age must be between 25-35 years, and she must have only been a surrogate once in her life.
• Parental Status upon Birth: Upon birth, the child is legally recognized as the biological child of the intended couple.
  • Abortion of the fetus requires consent from both the surrogate mother and the relevant authorities, following the provisions of the Medical Termination of Pregnancy Act.