Centre changes surrogacy rules; couples with medical condition can use donor gametes

The surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple, read a notification on the matter by the Centre.

New Delhi: Following a series of litigation, the Union government has changed the surrogacy rules, permitting the use of donor gamete if the wife or husband suffer from a medical condition that blocks production of egg or sperm.

The use of donor gamete will be allowed once the District Medical Board certifies that one of the partners in the intending couple “suffers from medical condition necessitating use of donor gamete”, according to the official notification gazetted this week.

“In females, the number of eggs and quality of eggs come down with age. Also, in some of the young women in reproductive age, the number of eggs is very less. For such reasons, it is always good to have the donor option. It is a welcome decision,” B Kalpana, Chair of the infertility committee at Federation of Obstetric and Gynaecological Societies of India FOGSI told DH.

The amendment will change the 2022 surrogacy rules that were challenged last year before the Supreme Court by a woman suffering from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome - a condition that prevented her from producing eggs.

The top court while allowing the woman to continue with her pregnancy observed that the government should reconsider the rules.

“The very purpose of surrogacy would get defeated by such rules,” an apex court bench had observed last December while permitting more than two dozen petitioners to use the donor eggs to become mothers through surrogacy.

In a separate case, Delhi High Court also noted that barring use of donor gametes prima facie violated basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures and services.

A petition against the surrogacy rule was also filed before the Bombay High Court.

The Centre, in January informed the top court that the government was reconsidering the amendment brought in surrogacy law last year.

The new amendment says that surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple.

This, however, means if both the partners have medical problems or are unable to have their own gametes they cannot opt for surrogacy.

"Single women (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperm to avail surrogacy procedures," the notification reads.

“In case of infertile couples, nearly one-third have problems with the females, one-third have problems with the male and the remaining one-third have problems for both. The decision to allow the donor gamete will benefit many couples,” noted Kalpana, a Madurai-based gynaecologist.

India’s surrogacy landscape has undergone significant regulatory changes in recent years with the aim of safeguarding the interests of intending couples, surrogate mothers, and the children born through surrogacy. However, the basic regulatory infrastructure remains at a nascent stage.

“For instance, in Haryana, the state-level ART (assisted reproductive technology) board has been formed, but no approval for surrogacy has been given so far. But there are states like West Bengal where the board has been formed some time ago and permissions are being given to the clinics,” said Pooja Mehta, a senior gynaecologist at Marengo Asia hospital at Gurugram.