Introduction

The Central government’s recent modifications to the Surrogacy (Regulation) Rules, 2022 reflect a significant shift in the legal landscape surrounding surrogacy practices in India.
These amendments address critical issues concerning gamete usage and access to surrogacy procedures.

Why discuss this?

Judicial Scrutiny: The Supreme Court’s involvement stems from petitions challenging the March 2023 ban on donor gametes for surrogacy, prompting the Centre to reconsider its stance.
Public Outcry: The judiciary’s intervention follows public outcry and legal challenges from women affected by the previous rules, emphasizing the urgency of addressing surrogacy regulations.

Gamete Flexibility: The amended rules allow couples certified with medical conditions to use donor gametes for surrogacy, provided at least one gamete originates from the intending couple.
Single Women’s Directive: Single women, including widows and divorcees, are mandated to use self-eggs and donor sperm for surrogacy, ensuring compliance with regulatory standards.
Certification Criteria: The District Medical Board may certify the need for donor gametes based on the medical condition of either spouse in the intending couple, facilitating access to surrogacy using donor gametes.

Definition: Altruistic surrogacy prohibits monetary compensation to the surrogate beyond medical expenses and insurance coverage, fostering ethical practices.
ART Regulation 2021: The Act integrates Assisted Reproductive Technology (ART) governance through the establishment of the National Assisted Reproductive Technology and Surrogacy Board, ensuring effective implementation and oversight.

Ministry Initiative: The Ministry of Health and Family Welfare introduced the Surrogacy (Regulation) Rules, 2022, focusing on clinic standards and personnel qualifications.
Clinical Requirements: The rules specify staffing criteria and essential equipment, enhancing operational standards across registered surrogacy clinics.
Medical Necessity: Surrogacy is permitted in cases of uterine abnormalities, failed IVF attempts, unexplained pregnancy losses, and pregnancy impossibility due to illness, ensuring access for couples facing diverse challenges.

Clinic Composition: Registered clinics must employ qualified professionals, including gynecologists, anesthetists, embryologists, and counselors, ensuring comprehensive care.
Gynecologist Qualifications: Gynecologists must possess relevant post-graduate qualifications and experience in ART procedures, ensuring competency in assisted reproduction techniques.
Insurance Coverage: Mandatory health insurance for surrogate mothers safeguards their well-being during and after pregnancy, reflecting a commitment to maternal health.
Affidavit Requirement: Intending couples must provide a legal guarantee of compliance with surrogacy regulations, ensuring accountability and adherence to legal standards.
Embryo Implantation Limit: Strict guidelines limit embryo implantation to minimize health risks and ethical concerns, prioritizing the well-being of both surrogate mothers and unborn children.
Abortion Protocol: Surrogate mothers’ rights are protected through adherence to established abortion procedures, respecting their autonomy and ensuring medical safety.

Exemptions under Surrogacy Law