SC’s observation on using parent’s gametes for surrogacy

Recently, the Supreme Court (SC) has protected the ‘Right of parenthood of a woman’, suffering from Mayer Rokitansky Kuster Hauser (MRKH) syndrome by interpreting the mandates under Surrogacy (Regulation) Rules, 2022.

• The petition was filed in the Supreme Court challenging the amendment as a violation of a woman’s right to parenthood.
• According to paragraph 1(d) of the surrogacy rules in India, ‘the intending couples’ must use their own gametes for surrogacy.
• However, as per the Medical board records the petitioner has “absent ovaries and absent uterus, hence she cannot produce her own eggs/oocytes”.
• The couple had begun the process of gestational surrogacy, through a donor.

What is Surrogacy?

• Surrogacy is a form of third-party reproduction in which a woman consents to carry a pregnancy for intended parent(s) who cannot conceive for medical reasons or those who are a gay couple.
• There are two forms of surrogacy: traditional surrogacy and gestational surrogacy.
  • Traditional surrogacy uses the surrogate mother’s egg for conception.
  • In contrast, gestational surrogacy is performed by transferring embryos made through IVF with eggs from the intended mother or a donor.

Situational argument against using parent’s own gametes:

• Rule 14(a) of the Surrogacy Rules which listed the medical or congenital conditions owing to which a woman could choose to become a mother through gestational surrogacy.
• They included “having no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small unicornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical condition such as gynecological cancer”.

Argument against the present situation:

• The government argued that, the process of surrogacy cannot be availed under the law unless the child was “genetically related” to the intending couple.

Supreme Court’s Views:

• Addressing the government’s contention that the surrogate child should be “genetically related” to the couple, the court pointed out that the child would be related to the husband.
• In this regard, it may be noted that the expression ‘genetically’ related to the intending couple has to be read as being related to the husband when Rule 14(a) applies.

Surrogacy rules in India:

• The Surrogacy (Regulation) Bill, 2019 defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. The important provisions of the Bill are as given below:
• Regulation: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
• Purpose: Surrogacy is permitted when it is:
  • for intending couples who suffer from proven infertility
  • altruistic
  • not for commercial purposes
  • not for producing children for sale, prostitution or other forms of exploitation
  • for any condition or disease specified through regulations
• Eligibility criteria: To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
  • a close relative of the intending couple
  • a married woman having a child of her own
  • 25 to 35 years old
  • a surrogate only once in her lifetime
  • possess a certificate of medical and psychological fitness for surrogacy
• Further, the surrogate mother cannot provide her own gametes for surrogacy.
• Parentage: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.

Is Surrogacy ethical?

• There had been many cases of death related to surrogacy which neither commissioning parents nor the doctors were ready to take responsibility of.
• Pregnancy and child birth may pose some medical risks to the mother, but a surrogate inherits these risks and others while the intended mother's or parents' health, especially in the case of male homosexual couples, is uncompromised.
• Sometimes, Indian adoption laws or citizenship laws of some other countries also create problems. For example, Germany gives citizenship by mother; this creates issues in determining the nationality of child.
• There were no strong laws for following issues such as rights of surrogate mother for fair compensation, maternal health care, right to abort etc.
• Commercial surrogacy arrangements involve a woman giving birth to a child that is not hers for money. Sometimes surrogacy is described as akin to "baby selling" or "womb renting," which in some ways is an accurate description.
• Homosexuals and single parents are not allowed to go for surrogate mothers.
• There had been few cases in which commissioning parents left surrogate mother because they did not like the surrogated child.
• There have been instances where poor girls and women were forced to become surrogate.
• There were no rules for medical insurance for issues that could arise in the pregnancy or later, and also the insurance to cover the child’s upbringing if the surrogate mother is abandoned by the legal parents.
• The research states that clinics do not provide the mother with a copy of the contract that is signed by the adoptive parents. In order to escape social stigma, pregnant women often stayed in shelter homes that provided them with lesser security and assistance than required.
• ICMR guidelines (2005) did not set accountability within the agencies indulged in providing surrogate mothers; they did not properly address the issues of sex selection.