28-February-2024-Editorial

ON SURROGACY, INDIAN LAW GOES A STEP FURTHER — BUT NOT FAR ENOUGH

The Indian government recently revised the Surrogacy (Regulation) Rules, 2022, allowing married couples to utilize donor gametes in cases of medical conditions.

This amendment comes in response to legal challenges and concerns regarding the restriction of biological parenthood through surrogacy.

Major Provisions of the Amended Surrogacy Rules:

Background:

• Previous rules (March 2023) restricted surrogacy to the intending couple’s gametes, excluding couples with medical conditions from biological parenthood.
• Legal challenges arose, particularly from individuals like a woman with MRKH Syndrome, challenging the right to parenthood.
• Supreme Court skepticism prompted reconsideration of the regulations.

Recent Amendments:

• Permit surrogacy with donor gametes if one spouse is certified by the District Medical Board to require donor gametes due to a medical condition.
• Couples where both partners have medical issues remain ineligible.
• Divorced or widowed women opting for surrogacy must use their eggs alongside donor sperm.

Understanding Surrogacy:

Types:

• Traditional Surrogacy: Involves the surrogate’s egg fertilized by the intending father’s sperm.
• Gestational Surrogacy: Uses an embryo, not biologically related to the surrogate, implanted into her uterus.

Arrangements:

• Altruistic Surrogacy: Surrogate receives minimal financial compensation for expenses.
• Commercial Surrogacy: Surrogate receives compensation beyond expenses, based on contract terms.

Other Provisions Related to Surrogacy in India:

Permissibility:

• Surrogacy allowed for altruistic purposes or couples with proven infertility or disease.
• Commercial surrogacy, including for sale, is prohibited.

Eligibility Requirements for Couples:

• Minimum 5 years of marriage.
• Wife aged 25-50, husband 26-55.
• No living child except in cases of disability or life-threatening disorders.

Surrogate Mother Criteria:

• Must be a close relative of the couple.
• Married with at least one child, aged 25-35, and surrogated once.

Parental Status upon Birth:

• Child legally recognized as the biological child of the intended couple.
• Abortion requires consent from the surrogate and relevant authorities.

Conclusion:

The amended Surrogacy Rules aim to address concerns of affected couples while ensuring ethical and legal frameworks in surrogacy arrangements.

By allowing greater flexibility, the government seeks to uphold the rights of couples facing fertility challenges while safeguarding the interests of all parties involved.