Why in News?

• The Supreme Court has protected the right of parenthood of a woman, suffering from a rare medical condition, by staying the operation of a law which threatened to wreck her hopes to become a mother through surrogacy.
• In this context, this article analyses the legal provisions with respect to surrogacy in India.

What’s in Today’s Article?

• Salient Provisions of the Surrogacy (Regulation) Act 2021
• What was the Recent Case, and Why did the Woman Approach the SC?
• The Petitioner’s Arguments
• The Government's Argument
• The SC’s Verdict

Salient Provisions of the Surrogacy (Regulation) Act 2021:

• What is surrogacy?
  • The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
  • It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
  • Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
• Status of child born:
  • Once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes.
  • Abortion of such a foetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
• Who can avail of surrogacy?
  • Under the Act, a couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
  • The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 25-50 years and the husband is between 26-55 years.
  • The couple must not have any living child (biological, adopted or surrogate.) A child with mental or physical disabilities or one suffering from a life-threatening disorder or illness has been exempted from the above criterion.
• Who can issue an ‘essential’ certificate?
  • The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court.
  • They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications.
• Who can be a surrogate?
  • A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who has been a surrogate only once in her life.
  • She must also possess a certificate of medical and psychological fitness for surrogacy.
• Who regulates surrogacy?
  • 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.
  • Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
• Offences under the Act: Include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child, etc. These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakhs.

What was the Recent Case, and Why did the Woman Approach the SC?

• The woman has the Mayer Rokitansky Kuster Hauser (MRKH) syndrome. Medical board records showed she 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, last year.
• However, a government notification (on March 14 this year) amended the law, banning the use of donor gametes.
  • It said “intending couples” must use their own gametes for surrogacy.
    • Gametes are reproductive cells that are used during sexual reproduction to produce a new organism. They are also known as sex cells.
    • In animals, female gametes are called ova or egg cells, and male gametes are called sperm.
  • The petition was filed in the SC challenging the amendment as a violation of a woman’s right to parenthood.

The Petitioner’s Arguments:

• She had begun the surrogacy process months before the amendment, which cannot be implemented retrospectively.
• The amendment to the Surrogacy (Regulation) Rules 2022 ruled out the use of donor eggs and made it impossible for her and her husband to continue with the process of surrogacy in order to achieve parenthood.
• The amendment contradicts the Surrogacy Act 2021 which recognised the situation when a medical condition would require a couple to opt for gestational surrogacy in order to become parents.
• The Surrogacy Rules 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 or if the uterus is surgically removed due to any medical condition such as gynaecological cancer.
  • The Surrogacy Rules made it clear that the choice was solely that of the woman.

The Government's Argument: The process of surrogacy cannot be availed under the law unless the child was “genetically related” to the intending couple. This exempted the use of donor eggs.

The SC’s Verdict:

• The amendment is prima facie contrary to what is intended under the main provisions of the Surrogacy Act both in form as well as in substance.
• The law permitting gestational surrogacy was “woman-centric”.
  • The decision to have a surrogate child was entirely based on the woman’s inability to become a mother owing to her medical or congenital condition.
  • Such a condition included the absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for her to carry a pregnancy or would make the pregnancy life-threatening.
• The amendment cannot contradict Rules which specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy.
• 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.