Context: The Union government has modified Rule 7 the Surrogacy (Regulation) Rules, 2022 and notified that both gametes need not come from a married couple in case they are certified as suffering from a medical condition.

About Surrogacy:
- Surrogacy (Regulation) Act, 2021 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.
- Surrogacy can be classified into:
- Altruistic surrogacy entails no financial compensation for the surrogate.
- Commercial surrogacy involves paying the surrogate for bearing the child, implying a profit.
- Compensated surrogacy simply involves covering the incurred expenses and loss of wages.
- In Devika Biswas v. Union of India, the Supreme Court held that Right to Reproduction was an essential facet of the ‘Right to Life’ under Article 21 of the Indian Constitution.
About Surrogacy (Regulation) Act, 2021:
- The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
- The Act permits surrogacy when, an intending couples who suffer from proven infertility and an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
- Surrogacy clinics are prohibited from conducting surrogacy or any associated procedures unless they receive registration approval from the relevant authority.
- The National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) shall be established by both the central and state governments, respectively.
- For a surrogate mother to be eligible for a certificate from the appropriate authority, she must have a familial relationship with the intending couple; not have served as a surrogate mother previously; possess a certificate confirming her medical and psychological health, be an ever-married woman having a child of her own, and be 25 to 35 years old.
- The surrogate mother is not allowed to use her own eggs for the surrogacy process.
- An order of parentage and custody of the surrogate child passed by a Magistrate's court.
- Insurance coverage for a period of 36 months Covering postpartum delivery complications for surrogate.
The rationale for this rule:
- Prior to the March 2023 rules, which insisted on the use of both eggs and sperm from the intending couple, the 2023 surrogacy rules allowed the use of donor eggs, but not sperm.
- The 2023 rules was challenged in the Supreme Court by a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a rare congenital disorder that affects the reproductive system and can cause infertility.
- The modifications in the Surrogacy Rules came after the Supreme Court doubted the correctness of the existing rules.
- Also the quality and number of eggs go down with age. While the decline accelerates after the age of 35 years, doctors recommend definitely using a donor egg after the age of 45 years.
About Surrogacy (Regulation) Rules, 2022:
- As per the Surrogacy (Regulation) Act, 2021, the couple can have a child born through surrogacy but must have at least one gamete from the intending couple, thus restricted married couples from getting donor gametes.
- 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.
- While the relaxation is for intending couple only. If a divorced or widowed woman opts for surrogacy, the egg has to come from the mother and Single woman (widow or divorcee), undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.
Challenges of this act:
- Exclusionary: The provisions deny this opportunity to LGBTQ+ persons, live-in couples, unmarried women and single parents.
- Altruistic surrogacy is paternalistic – It expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’. Thus reinforcing age old patriarchal norm of no economic value to the women’s work.
- It doesn’t respect the bodily autonomy of women – By shifting from right based to need based approach it snatches away the right of a women to decide upon her reproductive choices. Further it is and violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
- Impetus to black marketing- Blanket ban on commercial surrogacy may lead to creation of unregulated, exploitative underground/black markets.
- Does not defines close relative – The act didn’t define ‘close relative’, which is a condition to be fulfilled by the surrogate mother. Thus scope for confusion and exploitation of loop holes is always there.
- Reproductive liberty to the couples – Several restriction in form of eligibility criteria etc restricts the surrogacy option to intending couple which is a denial of reproductive liberty to them.
- No power to make decision on abortion – Intending couple don’t have final say in the consent to abort a surrogate child, even if the child being born out of a surrogacy arrangement is at the risk of physical or mental abnormalities.
- Identity and emotional aspect – Several times couples do not want to reveal their plans of oping for surrogacy,now putting the condition of close relative to be a surrogate clearly ignores this aspect and restricts the choices. Further, familial bonds and interaction may involve high emotional complications between surrogate mother and intended parents.
- Definition of infertility: Infertility is restricted to failure to conceive, does not cover other issues that a women may face in delivering a child.
Way forward:
- The government should remove the time limit for IVF treatment before permitting surrogacy, taking into consideration medical circumstances and concerns that deter some women from childbirth.
- The government is should address postpartum depression by implementing provisions for its management, and maternal benefits should be accessible to all mothers.
- Government should provide clear definition of close relative and infertility.
- With appropriate safeguards, expanding the surrogacy sector to include commercial surrogacy will benefit individuals who long for the experience of parenthood.
- Government should include live-in couples, unmarried women, and single parents in this act, as Right to Reproduction is the fundamental rights .















