TAG: GS 1: SOCIAL ISSUES
THE CONTEXT: The Central government in India has made significant amendments to the Surrogacy (Regulation) Rules, 2022, addressing concerns and complexities surrounding surrogacy procedures.
EXPLANATION:
- The modifications, notified by the Ministry of Health and Family Welfare, offer new provisions that impact both married couples with medical conditions and single women (widow or divorcee) undergoing surrogacy.
Amendments for Couples with Medical Conditions:
- The latest amendment allows flexibility in the origin of gametes for couples certified as suffering from a medical condition.
- Unlike the previous rule, both gametes need not necessarily come from the intending couple.
- Instead, if either the husband or wife constituting the intending couple has a certified medical condition necessitating the use of donor gametes, surrogacy with donor gametes is now permitted.
- This amendment aims to provide an avenue for couples facing medical challenges to still pursue surrogacy.
Specifics on Single Women Undergoing Surrogacy:
- The notification emphasizes that single women, whether widowed or divorced, opting for surrogacy must use their own eggs and donor sperm.
- This directive reinforces the requirement for self-eggs from the intending mother, offering clarity on the genetic components involved in surrogacy procedures for single women.
Legal Context and Supreme Court’s Involvement:
- The amendment comes in response to the Supreme Court’s involvement in the matter.
- The Apex Court had questioned the delay in decision-making by the Central government, particularly concerning women petitioners seeking surrogacy options.
- The Court had received petitions from women across the country, challenging the previous rule that prohibited the use of donor gametes for couples undergoing surrogacy.
Surrogacy (Regulation) Act, 2021:
- Regulation of surrogacy:
- The Bill prohibits commercial surrogacy, but allows altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
- Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
- Purposes for which surrogacy is permitted:
- Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
- Eligibility criteria for intending couple:
- The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
- Appropriate authority:
- The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
- The functions of the appropriate authority include; (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifications to the rules and regulations.
- Registration of surrogacy clinics:
- Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
- Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
- National and State Surrogacy Boards:
- The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB include, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
- Offences and penalties:
- The offences under the Bill include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy.
- The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
Conclusion:
- The amended surrogacy rules in India reflect a balancing act between legal regulations, medical considerations, and individual rights. The changes bring a nuanced approach to accommodate couples facing medical challenges while ensuring clarity for single women opting for surrogacy. The ongoing legal discourse demonstrates the importance of adapting regulations to meet the evolving needs and perspectives in the realm of assisted reproductive technologies.
