Donor gametes are allowed: What the new rule on surrogacy says

While the relaxation is for “intending couple”, the notification said that if a divorced or widowed woman opts for surrogacy, the egg has to come from the mother: “Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.”

What are the implications of this amendment?

Prior to the March 2023 notification — which insisted on the use of both eggs and sperm from the intending couple — surrogacy rules allowed the use of donor eggs, but not sperm.

The March 2023 notification was challenged in the Supreme Court by a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a rare congenital disorder that affects the reproductive system and can cause infertility.

Experts said the new amendment will keep surrogacy open to older women as well as those who cannot produce eggs because of certain medical conditions. “The women who opt for surrogacy are likely to be older, having tried other methods of getting pregnant before considering surrogacy. This is the reason some of them would need a donor egg. This is a very positive decision,” Dr Anjali Malpani, an IVF specialist from Mumbai, said.

The quality and number of eggs go down with age, Dr Malpani said. While the decline accelerates after the age of 35 years, doctors recommend definitely using a donor egg after the age of 45 years.

Dr Nutan Agarwal, head of the department of gynaecology at Artemis Hospital, said the need for donor eggs and surrogacy will arise in very few women.

“Surrogacy with donor egg will be required only for women who do not have a uterus — or have conditions that affect the functioning of the uterus — along with certain conditions affecting their ability to produce eggs,” Dr Agarwal, who was formerly a professor at AIIMS, said.

“This happens mainly in women with gonadal dysgenesis — congenital conditions that affect the entire reproductive functioning,” she said.

Dr Malpani said: “Less than 1% of women dealing with infertility would require both a donor egg and surrogacy. As it is, surrogacy is required by very few — maybe 2 out of 100 patients who come to me.”

What are the contentions with surrogacy for single women?

The Act allows access to surrogacy only to two categories of single women — those who are widowed or divorced. Even in these cases, the regulations stipulate that the woman’s own eggs have to be used; this was underlined by the recent notification as well.

These provisions have been challenged in the Delhi High Court by a 44-year-old unmarried woman. The petitioner has questioned the association of marital status with eligibility for surrogacy. She has also challenged the provision mandating the use of the mother’s own eggs, stating that at her age, the use of donor eggs are recommended.

The restriction on access to surrogacy for single persons, live-in couples, and LGBTQ couples too have been criticised.

Dr Malpani said: “These days we see many single women wanting to get pregnant and raise a child on their own. It is a shame that in this day and age they still do not have access to surrogacy if needed.”

In general, for which categories of women is surrogacy intended?

Surrogacy is mainly intended for women who have a missing or abnormal uterus, or have had the uterus surgically removed due to a medical condition. It can also be availed by women who have failed to conceive after multiple rounds of IVF, or women living with conditions that make it impossible for them to carry the pregnancy to term, or which make a pregnancy life-threatening.

Dr Malpani said: “Surrogacy is necessary for women who have a missing or abnormal uterus. It may also be required for women who have a thin endometrial layer.

“If the endometrium is thinner than 8 mm, the woman will not be able to carry the pregnancy to term. It can be because of polyps that the body thinks of as foreign object or because of adhesions in the uterus. We usually see it in women who have undergone an abortion that is not done properly. Medicines can help, but if they don’t, these women would need surrogacy.”

According to Dr Malpani, the failure of multiple rounds of IVF may not medically necessitate surrogacy. The success of IVF — where the egg and sperm are fertilised outside the body and then implanted to the womb — is about 40% for women under the age of 35 years.

“Hence, pregnancy can happen with three or four rounds. But the failure of IVF is not always because of a problem with the womb, and in such cases surrogacy is not medically necessary,” Dr Malpani said.

Dr Agarwal said: “Women should not opt for surrogacy unnecessarily. There are several complications with it such as the child inheriting the immune system of the surrogate and not receiving breast milk during the initial months. More importantly, the womb milieu — nutrition and hormones of the surrogate — determines the long term health of the child.