India's Recent Amendments to Surrogacy Rules - A Comprehensive Overview

India's Surrogacy Legislation - A Shift Towards More Inclusive Parenthood

- Introduction to the Recent Amendment: The Indian Government recently revamped the Surrogacy (Regulation) Rules of 2022, allowing for egg or sperm donation in surrogacy cases where one partner within the married couple suffers from a medical condition that prevents natural conception.

Reversing the Previous Surrogacy Rules

- March 2023 Amendment: The revision overturns the rules amended in March 2023 that prohibited the use of donor gametes and confined the use of only the intending couple's own genetic material for surrogacy.

Criticism and Legal Challenges to the March 2023 Amendment

- Issues and Challenges: The stringent rules contributed to angst, especially among couples who were unable to conceive naturally due to medically established conditions. It also engendered legal disputes, including a case brought to the Supreme Court by a woman diagnosed with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome – a congenital disorder that often results in female infertility.

- Supreme Court Perspective: The Supreme Court has raised queries about the effectiveness of such restrictive rules on surrogacy, observing that these regulations undermined the basic purpose of surrogacy.

The Salient Features of the Recent Amended Surrogacy Rules

- Amended Provisions: Under the new provisions, surrogacy with donor gametes is permitted if either partner in the couple requires it due to a medically validated condition. A key caveat is that surrogacy is not an option if both partners suffer from an ailment inhibiting natural conception.

- New Rules for Single Women: Divorced or widowed women opting for surrogacy must utilise their own eggs, but are permitted to use donor sperm.

Understanding Surrogacy

- Surrogacy Defined: Surrogacy is a legally binding agreement wherein a woman, known as the surrogate, carries and delivers a baby for an individual or a couple known as the intending parents.

- Classifications: Surrogacy can be further divided into two types. In 'Traditional Surrogacy,' the surrogate's own egg is fertilised with the intended father's sperm. Conversely, in 'Gestational Surrogacy,' the surrogate carries an embryo created using the intending father's sperm and intending mother’s egg, or if necessary, donor sperm or egg.

Different Surrogacy Arrangements

- Altruistic and Commercial Surrogacy: Altruistic surrogacy is conducted with no financial gains for the surrogate, while in commercial surrogacy, the surrogate receives monetary compensation.

Other Noteworthy Provisions in Indian Surrogacy Laws

- Permissibility and Restrictions: Surrogacy in India is only lawful for altruistic purposes and infertile or disease-stricken couples. Commercial surrogacy is strictly prohibited, as are any practices exploiting surrogate mothers or potential parents.

- Eligibility for Couples: Couples must have been married for 5 years with age limits set, and they should not already have living children barring some exceptions.

- Criteria for Surrogate Mothers: The surrogate mother must be a close relative of the couple, married with a child, within a specified age range and may only be a surrogate once in her lifetime.

- Legal Parental Recognition: The baby born through surrogacy is legally considered the biological child of the intending couple.

- Abortion Policy: The termination of pregnancy needs consent from both the surrogate and appropriate authorities, in harmony with the Medical Termination of Pregnancy Act.