Modifications in surrogacy rules in India: What changes are introduced?

The Surrogacy (Regulation) Rules, 2022 have been modified by the Union government on February 21. The purpose is to allow married couples who wish to be parents to make use of donor sperm or eggs for surrogacy. This move proved to be a boon for all those who wished to become parents but had medical complications. 
Earlier, an amendment was made in March 2023 wherein the use of donor gametes was strictly prohibited. However, the present amendment revokes this move. 

The changes made

Everything started in the month of March last year when Form 2 ( Consent of the Surrogate Mother and Agreement for Surrogacy) of the Surrogacy Rules was amended to state that the donor eggs were not to be made use of for gestational surrogacy of a couple. However, the present amendment revokes this rule by means of notification of the Ministry of Health and Family Welfare, which permits married couples to make use of a donor gamete on the condition. The condition is that a District Magistrate Board should certify that either the wife or the husband is going through a medical condition.
Yet, the notification states that the newborn to be born via the means of surrogacy must hold at least one gamete from the parents intending the baby. This further states that in a situation of a married couple where both partners are not able to make use of their gametes because of an existing medical condition are not eligible to opt for surrogacy. 

It is important to note however that the change is not to be made applicable to divorced or widowed women.  The new rule stipulates that a "Single woman", whether divorcee or widow undergoing surrogacy in order to become a mother must make use of donor sperms and self-eggs to avail of the procedure of surrogacy. 

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Supreme Court's  verdict

A woman suffering from the MRKH (Mayer- Rokitansky-Kuster-Hauser) Syndrome challenges the 2022 amendment in the law before the apex court of the country. As per the medical board records, the lady was unable to produce her eggs because of absent ovaries or uterus. As per the petition of the lady, the amendment violated the right to parenthood of a woman. The petition contended that the amendment violated Sections 2(r) and 4 of the Surrogacy Act, 2021. 
Additionally, it was also contented that the petitioner started the surrogacy process months prior to the amendment, and in this sense, the amendment must not be executed retrospectively. 

On the contrary, the Centre stated that the use of donor eggs was exempted as surrogacy cannot be availed of as per the laws, unless the child thus born is "genetically related" to the intending couple.

The court agreed with the petitioner's submissions and acknowledged the fact that Rule 14(a) recognizes the absence of a uterus as a medical condition that makes gestational surrogacy necessary.

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