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Previously, Rule 7, established under the Act concerning the ‘Consent of the Surrogate Mother and Agreement for Surrogacy,’ addressed the fertilization process involving donor oocytes with the husband’s sperm. However, the recent amendment to this rule has prompted several women to petition the Supreme Court seeking redress. Many of these women successfully obtained exemptions from the amended provision by presenting medical reports to the apex court demonstrating their inability to produce eggs due to various medical conditions.
A significant development that marks a progressive shift in India’s surrogacy laws, the Central Government has recently amended the Surrogacy (Regulation) Rules, 2022,to allow the use of donor gametes under specific medical conditions. This amendment, notified by the Ministry of Health and Family Welfare, addresses the concerns of couples struggling with infertility, offering them a renewed hope for parenthood.
Previously, the Surrogacy Rulesmandated that both gametes must originate from the intending couple, a stipulation that posed a significant barrier for many. The revised rules now state,
“(i) couple undergoing surrogacy must have both gamete from the intending couple. However, in case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete then surrogacy using 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; (ii) single woman (widow or divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure.”
This landmark amendment was partly propelled by the Supreme Court’s intervention in a case involving a woman suffering from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, which prevents the production of eggs. The court’s observations highlighted the previous rules’ limitations, noting,
“the insistence on the egg and sperm of the intending couple for gestational surrogacy was prima facie against Rule 14(a) of the Surrogacy Rules.”
Consequently, the petitioner was allowed to proceed with surrogacy using a donor egg, setting a precedent for the recent amendments.
The Delhi High Court also played a crucial role in this legal evolution, observing that the prohibition on the use of donor gametes “prima facie violated basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures & services.” This observation underscored the inherent conflict between the desire for parenthood and the regulatory framework governing surrogacy.
The amendment is a response to the growing litigation and constitutional challenges against the surrogacy laws in India. Stakeholders, including intending couples, surrogate mothers, and legal experts, have long advocated for a more inclusive and flexible legal framework that accommodates the diverse needs of individuals seeking surrogacy as a path to parenthood.
This change reflects a broader understanding of the complexities surrounding infertility and the need for laws that support rather than hinder the journey towards parenthood. It acknowledges the advancements in medical science and the changing societal norms that recognize the diverse ways families can be created.
As India’s surrogacy landscape continues to evolve, this amendment is a step towards creating a more compassionate and practical regulatory environment. It opens up new possibilities for those who have faced obstacles in their pursuit of parenthood, ensuring that the law adapts to the realities of modern family-building practices.
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