SURROGACY (REGULATION) RULES 2022

• On March 14, 2023, an amendment to Form 2 (Consent of the Surrogate Mother and Agreement for Surrogacy) of the Surrogacy Rules, along with Rule 7, prohibited the use of donor eggs for gestational surrogacy by intending couples.
• However, this restriction has been revised by a notification from the Ministry of Health and Family Welfare.
• The new amendment permits married couples to use donor gametes, provided that a District Magistrate Board certifies that either the husband or the wife has a medical condition that prevents conception.
• The notification also specifies that the child born through surrogacy must have at least one gamete from the intending parents. This means that if both partners in a married couple are medically unable to use their own gametes, they cannot pursue surrogacy.
• However, this change does not apply to widowed or divorced women, who are allowed to use self-eggs and donor sperm for surrogacy.
• The modified rules state, "Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure."

• The 2023 amendment, which prohibited the use of donor eggs for gestational surrogacy by intending couples, was challenged before the Supreme Court by a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome.
• The medical records showed that she was unable to produce her own eggs due to absent ovaries or a uterus. Her petition argued 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 recognized situations where a medical condition would necessitate gestational surrogacy for a couple to become parents.
• It was also noted that the petitioner had begun the surrogacy process before the amendment, which could not be applied retroactively.
• The Centre, however, argued that the use of donor eggs was exempted because surrogacy cannot be availed of under existing laws unless the child is "genetically related" to the intending couple.
• The Supreme Court, staying the operation of the law, emphasized that it prevented intending couples from achieving parenthood through surrogacy, which was prima facie contrary to the objective of the parent law—the 2021 Act.
• The court recognized that the law permitting gestational surrogacy was "woman-centric" as it was a woman's choice to have a surrogate child due to existing medical or congenital conditions.
• These conditions included the "absence of a uterus or repeatedly failed pregnancies, multiple pregnancies, or an illness that 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 recognized the absence of a uterus or any related condition as a medical indication necessitating gestational surrogacy.
• 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."
• 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.

4. Exclusion of Single Women from Surrogacy Regulation Raises Concerns

• The recent regulatory change allowing married couples to use donor gametes for surrogacy does not extend to single women.
• The amendment specifies that a widow or divorcee undergoing surrogacy must use her own eggs and donor sperm. This decision has sparked debate and legal challenges in Indian courts, with questions being raised about the exclusion of single women from accessing surrogacy services and the resulting discrimination.
• In the Delhi High Court, a 44-year-old unmarried woman has filed a petition challenging provisions of the 2021 Surrogacy Act, arguing that the restrictions violate her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
• She questions the link between marital status and eligibility for surrogacy, especially since medical practitioners recommend the use of donor eggs for women her age. To maintain a genetic connection, the petitioner's brother has agreed to donate his male gametes.
• Experts have also criticized the limitations on surrogacy access for single individuals, live-in couples, and LGBTQ couples.