The Supreme Court recently engaged in a thorough examination of challenges arising from the Surrogacy (Regulation) Act, 2021, expressing reservations concerning applications seeking parenthood through surrogacy from individuals surpassing the Act’s age limits. Justices B V Nagarathna and Ujjal Bhuyanpresided over a batch of pleas, raising concerns about the difficulties associated with raising a child at an older age, including the complexities of childcare and the potential confusion for children identifying parental figures. The focus primarily revolved around married women affected by Mayer-RokitanskyKuster-Hauser syndrome (MRKH), a condition causing absolute uterine factor infertility, who sought biological motherhood through gestational surrogacy due to their inability to produce eggs.

The Surrogacy Act of 2021 delineates age restrictions for women (23 to 50 years) and men (26 to 55 years). However, the Court encountered challenges against these age limits, questioning the motivations behind the petitions. Justice Nagarathna expressed dissatisfaction with the inclination to challenge various provisions, indicating that there might be a specific intent behind these petitions. Counsel representing the petitioners, affected by MRKH, argued the desperation of individuals seeking parenthood at an older age. However, the bench questioned why the consideration of adoption wasn’t explored earlier, especially for those unable to conceive naturally, before opting for surrogacy.

Previously, the Court issued a notice on a petition challenging provisions that prohibited single unmarried women from engaging in surrogacy. In another case, the Court stayed an amendment to the Surrogacy Rules that barred the use of donor eggs for gestational surrogacy. This amendment, introduced in March 2023, restricts intending couples from utilizing donor gametes, mandating that both the egg and sperm must originate from the couple. The petitioners contested this amendment, arguing that it contradicted Rule 14(a), allowing gestational surrogacy for women lacking a uterus or with abnormal uteruses.

Furthermore, the amendment specifies that single women (widowed/divorced) must utilize their eggs and donor sperm for surrogacy. The petitioners contested this, claiming it violated Rule 14(a) and diverged from previous provisions allowing the fertilization of a donor egg by the husband’s sperm. The recent change significantly limits the utilization of donor gametes for couples opting for surrogacy.

The Court had earlier expressed concerns about the restriction of using only the intending couple’s gametes for gestational surrogacy, finding it prima facie contradictory to Rule 14(a) of the Surrogacy Rules. The petitioners contested the amendment dated March 14, 2023, in Form 2, which necessitates consent and agreement for surrogacy, alleging it was against the existing provisions allowing the use of donor gametes in specific scenarios outlined by Rule 14(a).

Rule 14(a) within the Surrogacy (Regulation) Rules, 2022, facilitates gestational surrogacy using donor gametes in particular medical conditions hindering natural conception or successful pregnancy for intending couples. It permits the utilization of donor eggs when the intending mother lacks a uterus, possesses an abnormal uterus, or faces medical incapacity to produce viable eggs. Similarly, in cases of issues related to sperm quality or production for the intending father, Rule 14(a) allows the use of donor sperm in the surrogacy process. This provision addresses exceptional medical circumstances where the couple confronts impediments to conceiving or carrying a child to term without external assistance. It aligns with the Surrogacy Act’s legal framework, mandating compliance with procedural and documentation requirements. Essentially, Rule 14(a) provides a framework allowing for the employment of donor gametes, ensuring assisted reproductive methods like gestational surrogacy remain accessible to intending couples facing specific medically-related challenges in conception or successful pregnancy.

This case underscores the legal conflicts surrounding the Surrogacy Act, particularly regarding age limits and the use of donor gametes. It illuminates the tensions between legislative provisions and the constitutional right to reproductive choices. The ongoing discussions in the Courtroom are poised to influence the boundaries within which intending parents can access surrogacy, addressing concerns related to parenthood, age limitations, and reproductive rights in contemporary society.

Leave a Comment

× Need legal help?