Current Context:
The surrogacy rules have been amended to permit donor gametes for couples with medical conditions.
About current context:
- The Centre has revised its surrogacy guidelines, allowing the donor’s egg or sperm to be used if the couple’s medical condition necessitates it.
- The Supreme Court has granted surrogacy to a woman with MKH Syndrome, a rare congenital disorder causing infertility, using a donor egg.
- The rule necessitating that both the egg and the sperm come from the “intending couple” was introduced in 2023. Prior to that, the rules allowed for donation of eggs but not the sperm.
What is Surrogacy?
- Surrogacy, a legal arrangement allowing aspiring parents to have children, has gained acceptance in India, despite specific regulations, bridging the gap between biological and medical constraints.
Types of Surrogacies in India
Traditional Surrogacy:
- Traditional surrogacy involves using the surrogate mother’s own eggs through an intrauterine insemination method, which is less complex than other fertility treatments.
- The intended mother need not undergo egg retrieval since her eggs are not utilized.
Gestational Surrogacy:
- Gestational surrogacy involves an egg donor.
- The embryo created from the egg donor’s egg is implanted in the surrogate mother’s womb.
Legal Provisions Relating to Surrogacy in India:
The Indian Council of Medical Research Guidelines, 2005:
- These guidelines set ethical standards for surrogacy.
- They emphasize informed consent, health checks, and psychological assessments for both parties.
The Surrogacy Regulation Bill, 2019:
- This bill aims to regulate surrogacy, emphasizing altruistic practices.
- It prohibits commercial surrogacy, ensuring the well-being of surrogate mothers and children.
The Assisted Reproductive Technology Act, 2021:
- This act governs assisted reproductive procedures, including surrogacy.
- It extends surrogacy rights to married couples, live-in partners, single women, and even foreigners.
Judicial Perspectives on Surrogacy
Baby Manjhi Yamada v. Union of India (2008):
- The Supreme Court upheld the legality of gestational surrogacy.
- It recognized the right of intending parents to have a child through surrogacy.
Jan Balaz v. Anand Municipality (2008):
- The Gujarat High Court validated commercial surrogacy arrangements.
- It emphasized the importance of proper regulation.
Suchita Srivastava v. Chandigarh Administration (2009):
- The Supreme Court highlighted the need for comprehensive surrogacy laws.
- It urged the government to address legal gaps.
Justice K.S. Puttaswamy and anr. v. Union of India (2018):
- The landmark privacy judgment indirectly impacts surrogacy rights.
- It underscores individual autonomy and privacy.
The Current Scenario and the Way Ahead
- Surrogacy remains legal in India, primarily in the form of gestational surrogacy.
- The Surrogacy (Regulation) Act, 2021, seeks to protect surrogate mothers and children while promoting ethical practices.
- However, the exclusion of the LGBTQIA+ community and the prohibition of commercial surrogacy raise concerns.
- Traditional surrogacy should also find a place within the legal framework.
Conclusion
Surrogacy, when regulated appropriately, can be a boon for aspiring parents. As India navigates the legal landscape, striking a balance between compassion and regulation is crucial. The journey toward comprehensive surrogacy laws continues, ensuring the rights and well-being of all involved parties.