Context:

Surrogacy, the practice of a woman carrying a pregnancy for another individual or couple, has long been a subject of legal and ethical debate globally. In India, the regulation of surrogacy has undergone significant changes in recent years, with amendments to the Surrogacy (Regulation) Rules sparking both relief and controversy. The latest modifications, introduced by the Union government in February 2024, have once again brought the issue to the forefront, particularly regarding the use of donor gametes and the eligibility criteria for intending parents.

Challenges to the 2022 Amendment:

The Surrogacy (Regulation) Rules, 2022, initially prohibited the use of donor eggs or donor sperm for surrogacy, a decision that faced legal challenge and scrutiny. One significant case involved a woman suffering from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a condition that rendered her unable to produce eggs. The petitioner argued that the amendment infringed upon her right to parenthood and contradicted sections of the Surrogacy Act, 2021. The amendment was seen as restrictive, particularly for couples facing medical complications that necessitated the use of donor gametes to conceive through surrogacy.

The Supreme Court's Intervention:

In response to the legal challenge, the Supreme Court intervened, recognizing the importance of ensuring access to surrogacy for intending couples facing medical challenges. Justices B.V. Nagarathna and Ujjal Bhuyan emphasized the need to align the regulations with the objectives of the Surrogacy Act, 2021, which aimed to facilitate parenthood through surrogacy in cases of medical necessity. The court's decision to stay the operation of the amendment reflected its commitment to safeguarding the rights of individuals seeking assisted reproductive options, particularly in cases where traditional conception methods were not feasible.

Revisions to the Surrogacy Rules:

Following the Supreme Court's observations, the Union government revisited the Surrogacy (Regulation) Rules, 2022, and introduced amendments to address the concerns raised. The new amendment, issued by the Ministry of Health and Family Welfare, permits married couples to use donor gametes under specific conditions. However, the requirement that the child born through surrogacy must have at least one gamete from the intending parents limits the scope for couples where both partners are unable to contribute gametes due to medical reasons. While this amendment provides relief to some couples, it still poses challenges for those with certain medical conditions.

Exclusion of Single Women:

Despite the modifications allowing for the use of donor gametes by married couples, the revised rules maintain restrictions on single women seeking surrogacy. The regulations stipulate that single women, whether widowed or divorced, must use their own eggs and donor sperm, effectively excluding them from accessing surrogacy services. This exclusion has prompted legal challenges and debates over the rights of single individuals to pursue parenthood through assisted reproductive technologies. A petition filed in the Delhi High Court highlights the discriminatory nature of the regulations, particularly in light of medical recommendations and evolving societal norms.

Conclusion:

The evolution of surrogacy regulations in India reflects ongoing debates surrounding assisted reproductive technologies, rights to parenthood, and the intersection of law and medical ethics. While the recent amendments offer some flexibility for married couples facing fertility challenges, concerns remain regarding access for single individuals and the limitations imposed by the revised rules. As the legal landscape continues to evolve, it is essential to strike a balance between protecting the rights of individuals seeking surrogacy and addressing broader societal and ethical considerations surrounding assisted reproduction. Ultimately, ensuring equitable access to surrogacy services requires careful consideration of medical advancements, legal principles, and evolving social norms.

Source – The Hindu