Why is it in the News?

Two-judge Bench comes to the rescue of a woman suffering from the rare medical condition of Mayer Rokitansky Kuster Hauser syndrome by staying the operation of a law that threatened to wreck her hopes of becoming a mother.

What was the case, and why did the woman approach the Supreme Court?

• There was a woman who had the Mayer Rokitansky Kuster Hauser (MRKH) syndrome.
• Medical board records showed she has absent ovaries and an absent uterus, hence she cannot produce her eggs/oocytes.
• The couple had begun the process of gestational surrogacy, through a donor, last year.
• However, a government notification (on March 14 this year) amended the law, banning the use of donor gametes.
• It said “intending couples” must use their gametes for surrogacy.
• The petition was filed in the SC challenging the amendment as a violation of a woman’s right to parenthood.

What are Gametes?

• Gametes are reproductive cells that fuse during fertilization to form a new organism.
• They are haploid cells, meaning they contain only one copy of each chromosome. This ensures that the offspring has the correct number of chromosomes from both parents.
• In animals, the male gamete is called a sperm cell and the female gamete is called an egg cell.
• Sperm cells are small and motile, while egg cells are large and nonmotile.
• Gametes are produced through a process called meiosis, which reduces the number of chromosomes in a cell by half.
• This process is essential for sexual reproduction.

What were the petitioner’s arguments?

• The woman said that she started the surrogacy procedure months before the amendment took effect, so it cannot be implemented retrospectively.
• She and her spouse were unable to proceed with the surrogacy procedure in order to become parents because the Surrogacy (Regulation) Rules 2022 amendment prohibited the use of donor eggs.
• The Surrogacy Act 2021, which recognized situations where a couple would have to choose gestational surrogacy in order to become parents due to a medical condition, is in conflict with the amendment.
• The medical or congenital conditions listed in the Surrogacy Rules allowed a woman to choose to become a mother through gestational surrogacy.
• These included not having a uterus, having one that is missing, having an abnormal uterus, or having had surgery to remove the uterus because of a medical condition like gynecological cancer.
• It was explicitly stated in the Surrogacy Rules that the woman had the final say in the matter.
• Government's argument: According to the law, surrogacy cannot be used unless the intended couple and the child are "genetically related." This made using donor eggs exempt.

What was the Supreme Court’s (SC’s) Verdict?

• The Surrogacy Act's main provisions, both in form and content, imply that the amendment is prima facie contrary to their intended meaning.
• It was a "woman-centric" law that allowed gestational surrogacy.
• The woman's incapacity to become a mother due to her ailment or birth defect was the sole reason for choosing to have a surrogate child.
• Among these conditions were the lack of a uterus, multiple pregnancies, recurrent miscarriages, or an illness that would make the pregnancy dangerous or impossible for her to carry to term.
• The amendment cannot be in conflict with the Rules, which expressly identify the lack of a uterus or any related condition as a medical necessity for gestational surrogacy.
• The court emphasized that the surrogate child would be related to the husband in response to the government's argument that the child should be "genetically related" to the couple.
• It should be noted in this context that the phrase "genetically" related to the prospective couple must be interpreted as referring to the husband.

What is surrogacy?

• Surrogacy is the act of bearing and delivering a child on behalf of a different individual or couple (i.e., intended parents).
• A woman who bears a child on behalf of another woman is known as a surrogate mother. This can be done either naturally (traditional surrogacy) or by implanting a fertilized egg from another woman into her womb (gestational surrogates).
• The biological mother of the child serves as a traditional surrogate. Because it was their egg that was fertilized by the father's sperm.
• Eggs from the mother (or an egg donor) can now be collected, and fertilized with sperm from the father (or a sperm donor), and the embryo can be placed into the uterus of a gestational surrogate thanks to a process known as "in vitro fertilization" (IVF). Gestational surrogates are genetically unrelated to the child because their egg was not used in the process.

Provisions regarding the Surrogacy (Regulation) Act 2021:

• Prohibition of commercial surrogacy: The Act prohibits commercial surrogacy, meaning that no monetary or other material benefit can be given to the surrogate mother, except for medical expenses and insurance coverage.
• Permissibility of altruistic surrogacy: The Act only allows altruistic surrogacy, where the surrogate mother is a close relative of the intending couple or intending woman, and does not receive any financial or other material benefit, except for medical expenses and insurance coverage.
• Eligibility criteria for intending couples and surrogate mothers: Intending couples must be legally married and have a medical condition that necessitates surrogacy.
• Surrogate mothers must be between the ages of 25 and 35 years, have at least one child of their own, and be medically and psychologically fit for surrogacy.
• Registration of surrogacy clinics and assisted reproductive technology (ART) banks: All surrogacy clinics and ART banks must be registered with the National Assisted Reproductive Technology and Surrogacy Board.
• Establishment of National and State Boards: The Act establishes a National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology and Surrogacy Boards to regulate the practice of surrogacy and to ensure the welfare of surrogate mothers and children born through surrogacy.
• Penalties for violations: The Act prescribes penalties for violations of its provisions, including imprisonment for up to 10 years and fines up to Rs. 10 lakhs.