Donor gametes are allowed for single women, divorcees but here is a catch

The Ministry of Health and Family Welfare has modified the surrogacy rules (2022) to let married couples avail an egg or sperm of a donor in case one of the partners has a medical condition. As per the new law, the District Medical Board has to certify that either the husband or wife is suffering from a medical condition necessitating the use of donor gamete.

The surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple, it stated.

Before the passing of the Surrogacy (Regulation) Act 2021, restrictions on the definition, process and rights of the intending couple, intending mother, surrogate and child were not established, informs Mr Nitiz Murdia, the co-founder and managing director at Indira IVF.

In light of the mushrooming of IVF and surrogacy clinics in India - the regulations to govern the space remained grey. With the upgraded Act now, the following factors have been established:

What is the eligibility criteria?

For couples
1. The couple must be of Indian origin.
2. The couple must be legally married.
3. The female partner must be between the ages of 23 and 50, while the male partner must be between the ages of 26 and 55 on the day of registration.
4. The couple must not have any surviving child either biologically, through adoption, or via surrogacy. Additionally, they must not have a child who is mentally or physically challenged, or suffering from a life-threatening disorder without a permanent cure. The amendment came after the Supreme Court last year received petitions from women across the country

For single women
1. The woman must be of Indian origin.
2. She must be either a widow or a divorcee.
3. She must be between the ages of 35 and 45 years.
4. The woman must not have any surviving child either biologically, through adoption, or via surrogacy. Additionally, she must not have a child who is mentally or physically challenged, or suffering from a life-threatening disorder without a permanent cure.

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Eligibility to be a surrogate mother:
1. Must willingly agree to become a surrogate mother without any form of force or coercion.
2. Must be willing to engage in altruistic surrogacy, where no financial compensation, fees or remuneration, except for necessary medical expenses and prescribed costs, are provided to the surrogate mother or her dependents.
3. Must have been previously married.
4. Must have at least one child of her own.
5. Must be between the ages of 25 and 35 at the time of implantation.
6. Must not have previously served as a surrogate mother and must not have had three unsuccessful attempts at surrogacy.
7. Must not provide her own gametes for the surrogacy process.
8. Must provide consent as required by the relevant laws and regulations.

Medical requirements for the intending couple or woman
Murdia stresses that the intending couple or woman must have one of the following medical indications necessitating gestational surrogacy:
1. Absence of uterus, congenital absence, or abnormality of the uterus (such as hypoplastic uterus, intrauterine adhesions, thin endometrium or small uni-cornuate uterus) or surgical removal of the uterus due to medical conditions like gynaecological cancer.
2. Intended parent or woman experiencing recurrent failure to conceive after multiple attempts of in vitro fertilisation (IVF) or intracytoplasmic sperm injection (ICSI), also known as recurrent implantation failure.
3. Multiple pregnancy losses without an identifiable medical cause or unexplained graft rejection attributed to an exaggerated immune response.
4. Any medical condition rendering it impossible for the woman to carry a pregnancy to viability or posing life-threatening risks during pregnancy.

In the presence of these conditions, the Act first presented had allowed the use of gametes only from the biological parents to be fertilised and to be used for the purpose of surrogacy. However, there can be other medical indications due to which a female might be unable to produce eggs at all and may also have a dysfunctional uterus. This includes the following:

1. She has Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome is a disorder that mainly affects the female reproductive system. This condition causes the vagina and uterus to be underdeveloped or absent, although external genitalia are normal
2. She has pre-mature ovarian failure wherein a woman's ovaries stop producing eggs before the age of 40 and transition to menopause
What previous surrogacy law stated

The Centre had in March 2023 issued a notification banning donor gametes for couples intending to undergo surrogacy. The amendment came after the Supreme Court last year received petitions from women across the country after it allowed a woman with a rare congenital disorder to avail surrogacy with a donor egg. Thus, keeping this in mind, the amendment to allow the use of one donor gamete has been introduced.

However, the modified act now eases the constraints faced by couples and single mothers trying to conceive. This can be performed when the District Medical Board certifies that either partner in the intending couple has a medical condition that necessitates the use of a donor gamete.

Thus, one of the gametes, either the egg or the sperm, has to be of the couple and the other can be from a donor, upon the vetting of the District Medical Board. However, the amendment does not introduce changes for single women who are widowed or divorced; should they opt for surrogacy, the egg must be their own and they may opt for a donor sperm.

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Single men do not qualify
The law does not allow single men to opt for surrogacy. In India, it is prohibited to determine the sex of a child before it is born and hence, the sex of a child born through assisted reproductive technology (ART) and surrogacy is also unknown. The Act's exclusion of single men may be inspired by the regulations surrounding adoption in India which states that single men may not adopt a girl child.

Legal implications
The process may be slightly longer and tedious for an intending couple or woman, state experts. Four documents which include a certificate of essentiality, certificate of eligibility of surrogate mother, certificate of eligibility of intending couple or woman, and approval for availing surrogacy from the state ART board have to be produced.

Following this, and on a unique case basis only, intending couples would be allowed to use either a sperm or egg donor for surrogacy. Such patients may require assistance from a lawyer to get the documents to apply for surrogacy. Thus, an additional legal cost may be implied for the patient, thereby, increasing the overall cost of treatment.

The Surrogacy (Regulation) Act, 2021, adopts a stringent approach to prevent malpractices through measures like prohibiting commercial surrogacy, imposing strict eligibility criteria, and regulating ART clinics. The surrogate mother is entitled to medical expenses during the gestation period and insurance coverage for 36 months.

Moreover, the Assisted Reproductive Technology (Regulation) Act, 2021 has prioritised the safety of donors and especially egg donors, wherein donors have to be between ages 25-35 years, and they can donate eggs only once in their lifetime. It has specified medical insurance for the donors as well.
Ultimately, the Acts' effectiveness in curbing malpractices depends on robust enforcement. Continuous evaluation basis of the ever-evolving healthcare scenario and unique patient cases further helps in creating more stringent and inclusive legislation. Thus, the latest amendment is a testament to the same that protects the fundamental rights of patients.

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