In News:

The Supreme Court recently protected the reproductive rights of a woman suffering from Mayer Rokitansky Kuster Hauser (MRKH) Syndrome by staying the operation of a rule under the Surrogacy (Regulation) Rules, 2022, which prohibited the use of donor gametes for surrogacy. The Court observed that the amendment appeared to be inconsistent with the objectives of the Surrogacy (Regulation) Act, 2021.

What is Surrogacy?

The Surrogacy (Regulation) Act, 2021 defines surrogacy as an arrangement in which a woman carries and gives birth to a child with the intention of handing over the child to the intending couple after birth.

The Act permits only altruistic surrogacy, where no monetary compensation is provided beyond medical expenses and insurance. Commercial surrogacy, including any form of sale, exploitation or trafficking of women or children, is prohibited.

A child born through surrogacy is deemed to be the biological child of the intending couple for all legal purposes.

Key Provisions of the Act

Eligibility of the Intending Couple

The intending couple must:

• Be legally married for at least five years.
• Wife should be 25–50 years and husband 26–55 years.
• Have no living biological, adopted or surrogate child, except where the existing child suffers from a life-threatening illness or severe physical or mental disability.
• Obtain Certificates of Eligibility and Essentiality, including proof of infertility certified by a District Medical Board, a Magistrate's order regarding parentage and custody, and 16 months of insurance for the surrogate mother.

Eligibility of the Surrogate Mother

The surrogate must:

• Be a close relative of the intending couple.
• Be a married woman with at least one biological child.
• Be 25–35 years of age.
• Act as a surrogate only once in her lifetime.
• Obtain medical and psychological fitness certificates.

Regulatory Framework

The Act provides for the establishment of the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) to regulate surrogacy clinics, enforce standards and investigate violations. Commercial surrogacy, sale of embryos, abandonment of surrogate children and exploitation attract penalties of up to 10 years' imprisonment and a fine up to ?10 lakh.

Recent Supreme Court Case

The petitioner was diagnosed with MRKH Syndrome, a rare congenital condition involving the absence of the uterus and ovaries, making natural conception impossible.

The couple had initiated gestational surrogacy using donor eggs before the March 2023 amendment to the Surrogacy Rules, which mandated that intending couples must use their own gametes, effectively prohibiting donor gametes.

The petitioner argued that:

• The amendment could not be applied retrospectively.
• It contradicted the objectives of the Surrogacy Act, 2021, which recognises congenital conditions such as the absence of the uterus as valid grounds for gestational surrogacy.
• The restriction violated a woman's right to parenthood.

The Union Government contended that surrogacy under the Act requires the child to be genetically related to the intending couple.

Supreme Court's Observations

The Court held that the amendment appeared prima facie inconsistent with the parent legislation. It observed that the Surrogacy Act is fundamentally woman-centric, recognising medical conditions that make pregnancy impossible. The Court further noted that requiring genetic linkage with both parents would defeat the purpose of permitting gestational surrogacy in such exceptional cases. It also clarified that a child conceived through the husband's gametes would still satisfy the requirement of being genetically related to the intending couple.