The latest Supreme Court ruling comes nearly a year after Centre in March 2023 issued a notification banning donor gametes for couples intending to undergo surrogacy.  “The very purpose of surrogacy would get defeated by such rules,” an apex court bench had observed in December last year while permitting more than two dozen petitioners to use the donor eggs to become mothers through surrogacy.

What is the latest amendment to Surrogacy Rules, 2022?

The concerned amendment was made to Rule 7 that talks about the ‘Consent of the Surrogate Mother and Agreement for Surrogacy’ and deals with fertilisation of donor oocytes by the sperm of the husband.

As per the amended rule now, the District Medical Board has to certify that either the husband or wife is suffering from a medical condition, necessitating the use of donor gamete.

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, it stated. This means if both the partners have medical problems or are unable to have their own gametes they cannot opt for surrogacy. However, there is no change in the rule for single women (widow or divorcee) undergoing surrogacy who must use self-eggs and donor sperm to avail surrogacy procedures, the notification read.

Whom will this amendment benefit?

Since the amendment banning donor gametes for couples intending to undergo surrogacy came into force last year, several petitioners have approached courts in their respective states to seek some form of relief.

In one such instance, a petitioner couple, in their thirties, tried to conceive naturally but were unsuccessful due to the abnormally small uterus of the woman. They approached Bombay High Court in May 2023. “It is a matter of general knowledge that couples approach doctors and experts when they fail to conceive naturally.

In advanced age, the gametes of women would not be usable as medical science has proven that in advanced age, the quality of eggs would not be as desired, and the ultimate result, the baby, would not be that healthy. Moreover, there are certain medical conditions, where a woman is not in a position to generate eggs of her own,” their plea said.

The amendment will come as a relief for such partners in a couple who have a medical condition that restricts them from having a child.

What are other criticisms with respect to surrogacy rules in India?

As reported by Outlook before, the Surrogacy (Regulation) Act and corresponding rules exclude queer persons and couples in a live-in relationship from availing surrogacy to achieve parenthood. The rules reinforce the idea of family as a heterosexual and patriarchal institution.

Further, single unmarried women are also banned from having children through surrogacy under the law. While there was a slight glimmer of hope when the Supreme Court agreed to hear a plea of a 44-year-old woman who approached the court seeking permission to become a mother through surrogacy, the court ruled that the institution of marriage needed to be protected unlike the West, where children are born outside of marriage.

“It is difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life. Your client preferred to remain single. We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers.” “Science has advanced but not the social norms and that is for some good reason,” the court said.