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Polity & Governance
Mahesh

27/10/23 11:18 AM IST

Supreme Court allows surrogacy, strikes down rule banning use of donor gametes

In News
  • The Supreme Court has protected the right of parenthood of a woman, suffering from a rare medical condition, by staying the operation of a law which threatened to wreck her hopes to become a mother through surrogacy.
  • The woman, known only as ‘Mrs. ABC’ for anonymity sake, has the Mayer Rokitansky Kuster Hauser (MRKH) syndrome
  • Medical board records showed she has “absent ovaries and absent uterus, hence she cannot produce her own eggs/oocytes”.
  • The couple had begun the process of gestational surrogacy, through a donor.
Laws for Surrogacy
  • A government notification on March 14 this year amended the law, banning the use of donor gametes.
  • It said “intending couples” must use their own gametes for surrogacy.
  • The petition was filed in the Supreme Court challenging the amendment as a violation of a woman’s right to parenthood. 
  • The 2023 amendment contradicted the Sections 2(r) and 4 of the Surrogacy Act, 2021 which recognised the situation when a medical condition would require a couple to opt for gestational surrogacy in order to become parents. 
  • Rule 14(a) of the Surrogacy Rules which listed the medical or congenital conditions owing to which a woman could choose to become a mother through gestational surrogacy.
  • They included “having no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small unicornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical condition such as gynecological cancer”.
  • The decision to have a surrogate child was entirely based on the woman’s inability to become a mother owing to her medical or congenital condition. Such a condition included the “absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for her to carry a pregnancy to term or would make the pregnancy life-threatening”.
  • The amendment cannot contradict Rule 14(a) which specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy, the court held.
Surrogacy
  • The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
  • Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
  • Moreover, once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes.
  • Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
Regulation of Surrogacy
  • The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act.
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications. Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
  • Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
Source- The Hindu

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