Gamete Donation Disallowed? Surrogacy Regulation (Amendment) Act 2023

INTRODUCTION

Surrogacy laws in India have seen a lot of changes since its legalisation. From changes in the eligibility criteria to change in the legal definition of who are surrogate mothers, surrogacy practices have certainly come a long way! However, the most recent update is one that goes on to impact surrogacy in India greatly. Surrogacy Regulation (Amendment) Rules 2023 changes intended couples’ access to assisted reproduction technologies and how they may use the same in tandem with altruistic surrogacy to overcome fertility issues.

If you want to learn more about the evolution of surrogacy laws in India, click here.

WHAT IS SURROGACY REGULATION (AMENDMENT) ACT 2023?

The amendment to the Surrogacy Regulation Act 2021, dated 14 March 2023, prohibits the use of donor gametes in surrogacy arrangements in case of married couples. In other words, only intended couples who can provide their own set of healthy gametes can avail surrogacy services to have a child.

To those wondering how it affects surrogacy in India, the major problem with this amendment is that it is exclusionary for all willing couples in their advanced ages that may be dealing with serious issues of infertility and hence, cannot give birth to children. The amendment overlooks the plight of such couples facing advanced age and untreatable infertility issues. Ironically, couples faced with infertility who earlier saw surrogacy as a viable solution to build a family are now unable to explore altruistic surrogacy as a feasible option.

This leads us to one important question - What happens to willing married couples who have been medically assessed as ‘infertile’ due to common reproductive issues like low sperm count in case of men and ovulatory disorders in case of women?

GAMETE DONATION FOR WIDOWS/DIVORCEES

As discussed above, the amendment filters out married couples from access to avail sperm and egg donations for altruistic surrogacy. However, the amendment clearly states that widows and divorced individuals are allowed to explore altruistic surrogacy through assisted reproductive technologies using donated gametes. Hence, egg donation and sperm donation in India is legal but only reserved for single widowed or divorced individuals seeking a child through altruistic surrogacy.

IMPACT OF THE NEW SURROGACY LAW

The amendment brings up several implications, largely affecting married people wanting to opt for surrogacy in a number of ways.

1. Limitations of Infertility: By disallowing the use of donor gametes in surrogacy arrangements for married couples, the amendment narrows the scope of altruistic surrogacy as a useful solution for couples dealing with infertility. This particularly affects individuals or couples with advanced age or specific medical conditions that render their sperm and eggs unsuitable for conception.

2. Emotional and Psychological Impact: With surrogacy being the leading alternative to parenthood for couples unable to have children on their own, the inability to access altruistic surrogacy can lead to significant emotional and psychological distress for couples longing to have children. It may also heighten feelings of loss, disappointment, and hopelessness, further compounding the lack of agency they experience stemming from their infertility. In a way, the changes may be seen as an infringement upon the right to motherhood especially for women dealing with problems of infertility.

3. Equity and Access to Parenthood: The amendment is rooted in discriminatory raises concerns regarding equitable access to parenthood. It inadvertently creates a disparity, favoring couples who can provide their own gametes, and widows/divorced individuals who can avail donated gametes, while disregarding the needs and aspirations of those who rely on donor gametes to achieve parenthood. Such discrepancies can potentially lead to inequalities within the surrogacy landscape in India.

RIGHT TO LIFE

Apart from the above-mentioned effects of the Surrogacy Amendment Act 2023, the prohibition of married couples availing donated gametes for surrogacy also impacts a citizen’s Fundamental Right to Life.

It is important to note that the fundamental right to life encompasses not only the right to physical existence but also the right to lead a fulfilling life, including the opportunity to attain parenthood and raise a family. With infertility being a deeply emotional and distressing experience for couples who want to have children, altruistic surrogacy with the help of donated gametes comes as a great solution to counter the same.

However, by limiting the options available to married couples facing infertility, this prohibition may be seen as impeding their ability to exercise their fundamental right to life and family.

CONCLUSION

The Surrogacy Regulations Amendment Act of March 2023 is a complex piece of legislation with far-reaching implications. From an accessibility point of view, what may be helpful is to re-evaluate the eligibility criteria for surrogacy arrangements so that they can effectively accommodate the needs of all intending individuals irrespective of the aspect of fertility. In doing so, we take into consideration the fact that a lot of couples opting for surrogacy in India are, in fact, unable to conceive healthy children due to infertility.

Revisiting the law can help to foster inclusivity and fairness. This could involve reevaluating the prohibition on donor gametes in certain circumstances.

HOW WE CAN HELP

Are you curious about assisted reproductive technologies and surrogacy laws in India? If you are a married couple exploring surrogacy laws in India and are affected by the Surrogacy Amendment Act of 2023, our team of experts at Sunil Khattri & Associates can help!

Avail years of experience and expertise to start your altruistic surrogacy journey today! Contact us now.

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The Author : Dr. Sunil Khattri

sunilkhattri@gmail.com

+91 9811618704

Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.