The Indian government has recently amended the surrogacy rules, allowing couples to use donor eggs or donor sperm for surrogacy. This amendment has overturned the previous rule made in March 2023 that banned the use of donor gametes.
However, the new notification states that if the District Medical Board certifies that either husband or wife constituting the intending couple suffers from a medical condition necessitating the use of donor gamete, then surrogacy using donor gamete is allowed.
The relaxation in the rules is primarily for intending couples. However, the notification specifies that if a divorced or widowed woman opts for surrogacy, the egg has to come from the mother. Single women (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail of the surrogacy procedure.
This amendment will help keep surrogacy open to older women, as well as those who cannot produce eggs due to certain medical conditions. The quality and quantity of eggs decrease with age. While the decline accelerates after the age of 35 years, doctors recommend using a donor egg after the age of 45 years.
According to experts, the amendment will benefit women who have a missing or abnormal uterus or have had the uterus surgically removed due to a medical condition.
It can also be availed by women who have failed to conceive after multiple rounds of IVF, or women living with conditions that make it impossible for them to carry the pregnancy to term or which make a pregnancy life-threatening.
The Act allows access to surrogacy only to two categories of single women, those who are widowed or divorced. Even in these cases, the regulations stipulate that the woman’s eggs have to be used.
These provisions have been challenged in the Delhi High Court by a 44-year-old unmarried woman. The petitioner has questioned the association of marital status with eligibility for surrogacy. She has also challenged the provision mandating the use of the mother’s eggs, stating that at her age, the use of donor eggs is recommended.
Dr Malpani, an IVF specialist from Mumbai, told Indian Express, “These days we see many single women wanting to get pregnant and raise a child on their own. It is a shame that in this day and age, they still do not have access to surrogacy if needed.”
In conclusion, the recent amendments to the surrogacy rules in India have expanded the use of donor gametes for surrogacy. These amendments will benefit couples who have medical conditions that necessitate the use of donor gametes.
The amendments will also benefit women who have a missing or abnormal uterus, have had the uterus surgically removed due to a medical condition, or are living with conditions that make it impossible for them to carry the pregnancy to term.
However, the restrictions on access to surrogacy for single persons, live-in couples, and LGBTQ couples have been criticised.
