Introduction:

In a pivotal development, the Central Government has brought about significant amendments to the Surrogacy (Regulation) Rules, 2022, altering the dynamics of surrogacy in India. The modification permits couples, certified as medically unfit to conceive, to use donor gametes while undergoing surrogacy. This change, prompted by legal challenges, particularly recognizes the challenges faced by individuals with medical conditions hindering natural conception. The amendment addresses concerns raised against the earlier restriction on the use of donor eggs for gestational surrogacy. The Surrogacy Rules now provide greater flexibility, allowing a District Medical Board’s certification to authorize the use of donor gametes, subject to the condition that at least one gamete originates from the intending couple.

Legal Challenges and Court’s Observations:

The backdrop of this alteration includes legal challenges, with the Supreme Court and Delhi High Court expressing reservations about the earlier restrictive provisions. The Supreme Court, in a case involving Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, observed that the insistence on the egg and sperm of the intending couple for gestational surrogacy appeared prima facie against the Surrogacy Rules. A stay was granted, allowing the petitioner to use a donor egg for surrogacy. The Delhi High Court also voiced concerns, stating that barring the use of donor gametes violated basic rights and created a conflict with the Assisted Reproductive Technology (Regulation) Act, 2021.

Challenges to the Amendment:

Challenges to the amendment were mounted, with petitions arguing that complications related to fertility would hinder applications for surrogacy if donor gametes were barred. The legal landscape witnessed a surge in litigation seeking clarity on provisions, exemptions based on individual circumstances, and constitutional challenges against various reproductive technology regulations.