INTRODUCTION
Mother Nature has bestowed upon us a multitude of amazing and surprising gifts. One such gift is to be able to procreate a new life. Unfortunately, there are a few people who are unable to procreate due to some conditions. Fortunately, through surrogacy, it becomes possible for people who want to become parents to have a child and enjoy parenthood. As rightly said by Mother Teresa “The greatest good is what we do for one another” and surrogacy is one such way. The notion of surrogacy is not new in India; in fact, it gained notoriety in 1978 after Kanupriya, the world’s second and the country’s first IVF baby, was born in Kolkata. This event demonstrated India’s competence in using assisted reproductive technology for reproductive rights. Subsequently, India has been mushrooming as a surrogacy capital. It has become a widely accepted choice for single people and couples seeking parenthood. Young couples find surrogacy to be a desirable substitute for adopting children, which helps lower the high rates of infertility.
CONCEPT OF SURROGACY
Surrogacy is a significant technique of aided human procreation for individuals who are unable or opt not to conceive through conventional means.[1] A woman who uses her eggs or an implanted, fertilised egg from another woman to birth a child on behalf of another woman is known as a surrogate mother. the process of bearing and delivering a child on someone else’s behalf is known as surrogacy. Any kid born through a surrogacy operation will be considered the couple’s biological child and will have the right to all the privileges and benefits given to a biological child under all current laws. There are two primary categories of surrogacy: traditional and gestational. In traditional surrogacy also called partial surrogacy the egg of the surrogate is used. The resulting offspring is biologically linked to the male companion of the ‘commissioning couple’ but not to the female.[2] In the case of gestational Surrogacy also referred to as total surrogacy is adopted by someone who desires a biological connection to the child. In this scenario, the ‘surrogate host’ is genetically unrelated to any child that may be born as a consequence of this arrangement.[3]
REGULATORY FRAMEWORK
The primary goal of the 2005 ICMR Guidelines was to establish moral standards for ART (Assisted Reproductive Technology) clinic regulation in India. Surrogacy is a contractual arrangement when a woman agrees to gestate a pregnancy that is not biologically related to her or her spouse.[4] The purpose of this arrangement is for the woman to carry the pregnancy to full term and then give the child to the genetic parents, for whom she is acting as a surrogate. It specifies that it should be embraced by individuals for whom it is physically or medically infeasible or unpleasant to conceive and bear a child.[5] Later The ART (Regulation) Bill, 2020 aimed to regulate and ensure ethical ART practices and to safeguard the welfare of the surrogate mother as well as the rights of the unborn.
The Surrogacy (Regulation) Act of 2021 framed rules for the practice of surrogacy in India. The key points of this act were that it made it necessary for all the clinics providing this treatment to be registered under this act and defined several key aspects relating to surrogacy, such as eligibility criteria and the rights of the surrogate. Under this act, only altruistic surrogacy is permissible and commercial surrogacy is banned. Any couple that adopts a child through commercial surrogacy faces a maximum fine of one million rupees and a ten-year jail sentence. The enactment of the Surrogacy (Regulation) Act, of 2021 marked a key milestone in the process of regulating surrogacy in India. Later in 2023, there was an amendment made that had put a restriction on donor gametes but through a recent amendment in 2024, one donor gamete is allowed.
THE SURROGACY (REGULATION) AMENDMENT RULES, 2024
An amendment to the Surrogacy (Regulation) Rules 2022 in March 2023 prohibited the use of donor gametes and both of the intended couple’s gametes were expected to be given to the surrogacy pair. In the case of Arun Muthuvel v. Union of India[6] (2023), the Hon’ble Supreme Court of India allowed a woman with a syndrome called Mayer- Rokitansky- Kuster-Hauser (MRKH) to undergo the process of surrogacy with a donor egg. The court further stated that the amendment impends the couple from attaining parenthood through surrogacy which is prima facie contrary to the aim of the Surrogacy (Regulation) Act of 2021.
The Ministry of Health and Family Welfare issued the Surrogacy (Regulation) Amendment Rules, 2024 on 21-2-2024, to modify the Surrogacy (Regulation) Rules, 2022.[7] As per the notification, “in the 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.” It also added that a single woman who is undergoing surrogacy is required to use self-eggs and the sperm of a donor to undergo the surrogacy operation.
IMPACT OF THE SURROGACY (REGULATION) AMENDMENT RULES, 2024
This amendment has brought about relief and much more legal flexibility for married couples who are aspiring to become parents. Usually, women who opt for surrogacy have low ovarian reserve, do not have a uterus or have a damaged uterus, and, getting a donor egg is the only option to have a child. This amendment allows one donor gamete which makes it easier for such people to opt for surrogacy. By allowing the use of donor gametes under certain conditions, the 2024 amendment addresses a critical gap in the law that previously left many potential parents without options. This amendment also allows surrogacy for widowed or a divorced woman. Dr. Anjali Malpani, a prominent fertility specialist states, “This amendment is a testament to the evolving understanding of reproductive health. It acknowledges the complexities involved in conception and opens doors for many to realize their dream of parenthood.”
LEGAL CHALLENGES
The major issue of surrogacy laws in India is that it bans commercial surrogacy. It robs surrogates of a respectable source of income, which significantly restricts the pool of women ready to participate in surrogacy and, inadvertently, takes away the chance for intended parents to use it. The Hon’ble Supreme Court also in Suchita Srivastava v. Chandigarh Administration[8] noted that the interpretation of a woman’s freedom to choose her reproductive options has been viewed as a component of ‘personal liberty’ under Article 21 of the Constitution of India. Under the current law a certificate of essentiality stating that it is ‘biologically impossible for the person(s) to have a child in any other way’ is required and it fails to take into account any other medical issues that, although not cause infertility in women, may nonetheless be present; but makes it a risk for conceiving. Further, the surrogacy laws need to be more inclusive as the proposed amendment still refuses to provide LGBTQ+ people, live-in couples, and single parents this chance.
CONCLUSION
Surrogacy takes over and continues the process of giving you the gift of parenting when nature fails you. Legal restrictions, ethical concerns, and medical developments interact dynamically to shape the surrogacy scene in India. The development of guidelines, morality, and exchange will be crucial in determining the future of surrogacy in the nation. Future changes must be made in the surrogacy law in India making sure it’s fair to everyone involved, protects their rights and is exclusive.
Author(s) Name: Srijan Bansil (IMS Unison University)
References-
[1] Kathryn Venturatos Lorio, ‘Alternative Means of Reproduction: Virgin Territory for Legislation’ (1984) 44 LLR 1641
[2] Peter Brinsden, ‘Clinical Aspects of IVF Surrogacy’ in Rachel Cook, Shelley Day Sclater & Felicity Kaganas (eds), Surrogate Motherhood: International Perspectives (Hart Publishing, 2003)
[3] Ibid
[4] ICMR Guidelines, r 1,2,33
[5] Id. r 3, 10, 2
[6] Arun Muthuvel v. Union of India W.P.(C) No. 830/2023
[7] Kriti, ‘ MoHFW allows One Donor Gamete for undergoing Surrogacy subject to medical conditions prescribed by District Medical Board’ ( SCC Online, 22 February 2024)< https://www.scconline.com/blog/post/2024/02/22/mohfw-notifies-surrogacy-amendment-rule-2024-legal-news/ > accessed 12 July 2024
[8] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
