Surrogacy rules changed in India

The Centre has tweaked the surrogacy rules, bringing relief for married couples aspiring to become parents.

Dimension 1: Regulation of Surrogacy in India

• Surrogacy is a method of assisted reproductionwhere intended parents work with a gestational surrogate who will carry and care for their baby(ies) until birth.
• In the practice, one woman carries the child for another with the intention that the child should be handed over after birth.
• Such a surrogacy arrangement may be altruistic or commercialin nature.  
• Intended parents use surrogacy to start or grow their families when they can't do so on their own.
• The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act.
• This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.

Dimension 2: The new Rules (Surrogacy (Regulation) Amendment Rules, 2024)

• The Ministry of Health and Family Welfare has amended the Surrogacy (Regulation) Rules, 2022 to allow the use of a donor gamete – ova or egg cells and sperm – if one of the “intending couple” has a medical condition.
• The notification comes nearly a year after the Centre banned the use of donor gametes in surrogacy.
• Changes in surrogacy rules
  • The notification by the Centre states that both gametes need not come from the “intending couple” in case the husband or the wife have a medical condition.
  • In 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 atleast one gamete from the intending couple.
• However, the Surrogacy (Regulation) Amendment Rules, 2024 will not be applicable for widowed or divorced women.
  • Indian laws bar single unmarried women from having children through surrogacy.

Dimension 3: Earlier Rules

• In 2023, the Centre through Rule 7 under the ‘Consent of the Surrogate Mother and Agreement for Surrogacy’ of the Surrogacy (Regulation) Act had mandated that both the egg and the sperm should come from the intending couple.

• The latest amendment came after the Supreme Court last year received petitions from women across the country after it allowed a woman with a rare MRKH syndrome to avail surrogacy with a donor egg.

Dimension 4: Impact of the new rules

• The new rules will relief to couples struggling with infertility problems.
• While very few people need surrogacy — it is only meant for those who do not have a uterus, have a damaged uterus, or have a thin uterine lining — among those who do, the women are likely to be older, having tried other methods of getting pregnant before considering surrogacy.

Dimension 5: Challenges to Surrogacy

• Unawareness:A surrogate mother is largely unaware of existing legal or medical procedures and the risks involved in the process.
• No legal recognition:Perhaps the most awful disadvantage is that surrogate mother is not legally recognized as “workers” in India since they do not sell mental or manual labour in the traditional sense of the term. Consequently, they do not have any legal rights.
• No international recognition:There are no internationally recognised laws for surrogacy, so many parents and children can be left vulnerable - or even stateless.
• Profit-making profession:In India, surrogacy is a $2.3-billion industry which allowed medical practitioners to earn huge profits, without any rules and regulations governing their practice.
• Risk to life:Surrogacy puts the lives of poor women, who rented out their wombs to a surrogate couple to earn a living, at great risk due to repeated pregnancies. 
• Exploitation of Fundamental Rights:The practice destroys the surrogate mother’s fundamental rights. While the surrogate mother gets a very small amount, doctors and other professionals thrive on huge profits.
• Injustice:While the surrogate mother could not refuse to give up the child, the intended parents had the right to refuse the child.