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Supreme Court’s Ruling on Surrogacy and Donor Gametes

Why is it in the news?

  • A woman, identified as ‘Mrs. ABC’, diagnosed with Mayer Rokitansky Kuster Hauser (MRKH) syndrome, lacks ovaries and a uterus. The couple initiated the process of gestational surrogacy using a donor. However, a recent amendment prohibited the use of donor gametes, mandating “intending couples” to use their own for surrogacy.
  • Later, the amendment was challenged in the Supreme Court as a violation of a woman’s right to parenthood.

More about the news

Petitioner

  • Argued against the amendment, stating that it contradicts the Surrogacy Act, 2021.
  • Highlighted Rule 14(a) of the Surrogacy Rules, which lists conditions like lack of a uterus as reasons for opting gestational surrogacy.
  • Emphasized that the choice for surrogacy is the woman’s right, and past procedures shouldn’t be affected by retrospective amendments.

 

Government

  • Claimed surrogacy is valid only if the child is “genetically related” to the intending couple, thereby excluding donor eggs.

 

Court’s Ruling

  • Agreed with the petitioner’s argument that gestational surrogacy law is “woman-centric”.
  • It recognized medical conditions, like absence of a uterus, as valid reasons for surrogacy.
  • Contradicting the amendment with Rule 14(a) was found to be improper.
  • Addressed the “genetically related” argument, clarifying that the child would still be related to the husband, especially when Rule 14(a) is considered.
  • Lastly, the Supreme Court upheld the woman’s right to choose surrogacy, effectively striking down the rule banning the use of donor gametes.
Key Features of Surrogacy (Regulation) Act, 2021

 

Surrogacy involves a woman birthing a child for another couple and handing over the child post-birth.

 

Regulatory Bodies

  • National Assisted Reproductive Technology and Surrogacy Board.
  • State Assisted Reproductive Technology and Surrogacy Boards in each state & UT.

Regulations

  • Bans commercial surrogacy; allows altruistic surrogacy.
  • Permitted for proven infertility, not for exploitation.
  • Compulsory registration of surrogacy clinics.
  • Appointment of authorities for monitoring.

Eligibility for Surrogate Mother

  • Married, aged 25-35, with own child.
  • Can surrogate only once.
  • Requires medical & psychological fitness certificate.
  • Eligibility for Intending Couples: Requires ‘certificate of essentiality’ and ‘certificate of eligibility’.

Other Features

  • Surrogate child is biological child of intending couple.
  • Abortion needs surrogate’s consent & appropriate authority’s authorization.
  • Violations can lead to 10-year imprisonment & fine up to 10 lakh rupees.

Significance

  • Regulates the Market: Registers clinics; defines penalties.
  • Rights of Surrogate Mother: Guarantees pre & post-natal care, abortion rights.
  • Child’s Rights: Prevents abandonment due to disabilities or parental issues.
  • Promotes Medical Tourism: Earlier industry worth was $2 billion/year.
  • Supports Intending Parents: Assists in completing families.

Shortcomings

  • Commercial Surrogacy Ban: May push industry underground.
  • Restriction to Heterosexual Couples: May violate ‘Right to Life’ under Article 21.
  • Devika Biswas v. Union of India: The Apex Court held that Right to Reproduction was an essential facet of the ‘Right to Life’ under Article 21.
  • Narrow Definition of ‘Infertility’: Doesn’t cover all cases.
  • Ambiguity over ‘Close Relative’: May lead to coercion in families.

Way Forward

  • Address Postpartum Depression: Include provisions & maternal benefits for surrogate mothers.
  • Remove IVF Time-Frame: Recognize conditions like Tokophobia.
  • Expand Surrogacy Options: Consider reintroducing commercial surrogacy with safeguards.
Types of ARTs (ART is used to treat infertility)

 

Surrogacy is an Assisted Reproductive Technology (ART) process, where an intending couple commissions a surrogate mother to carry their child.

·       In Vitro Fertilization (IVF): It is the most common form of ART that is used by maximum patients. In this, woman’s eggs are combined with man’s sperm in a laboratory. The fertilized egg is then placed inside the woman’s uterus in a procedure called embryo transfer. For instance, Mitochondrial Replacement therapy (MRT) with a concept of three parent baby is a form of IVF.

·       Gamete intrafallopian transfer (GIFT): The man’s sperm and a woman’s egg are made to combine in a lab. Then the eggs are implanted into the fallopian tubes and the fertilization occurs inside a woman’s body.

·       Intrauterine insemination (IUI): Also known as artificial insemination, it involves insertion of the male partner’s (or a donor’s) sperm into a woman’s uterus at or just before the time of ovulation by long narrow tube.

·      Gestational Surrogacy: In this, the embryo is created via IVF, using the eggs and sperm of the intended parents or donors, and is then transferred to the surrogate. The child is thus not biologically related to the surrogate mother, who is often referred to as a gestational carrier.

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