Surrogacy Rules And the Future of IVF in India

The Ministry of Health & Family Welfare has amended the surrogacy Rules to allow couples to use donor eggs or donor sperm for surrogacy. This overrides a previous amendment made in March 2023 that banned the use of donor gametes.

The new notification states: “In case when the District Medical Board certifies that either the wife or husband constituting the intending couple suffers from a medical condition that necessitates the use of donor gamete, then surrogacy using donor gamete is allowed.”

In cases of divorced or widowed women, surrogacy is allowed, given that the woman uses self-eggs and donor sperm to avail surrogacy procedure.”


The implications of the amendment

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

The notification was challenged in the Supreme Court by a woman with a rare congenital disorder that affects the reproductive system and can cause infertility.

According to experts, the new amendment will allow older women and those who are unable to produce eggs due to certain medical conditions to continue using surrogacy. It is likely that women who choose surrogacy will be older and may require a donor egg due to previous attempts at getting pregnant through alternative methods. Dr Anjali Malpani, an IVF specialist from Mumbai, views this decision positively. Dr Malpani explains that the quality and quantity of eggs decrease with age, with a notable decline after age 35. Doctors recommend using a donor egg after age 45.

Dr Nutan Agarwal, who is the head of the gynaecology department at Artemis Hospital, explained that the demand for donor eggs and surrogacy is limited to a small number of women. According to Dr Agarwal, surrogacy with a donor egg is only necessary for women who do not have a uterus or have conditions that negatively impact the functioning of their uterus, as well as certain conditions that affect their ability to produce eggs. She mentioned that this primarily happens in women with gonadal dysgenesis, which is a congenital condition that affects the entire reproductive functioning. Dr Malpani, who is also a fertility specialist, stated that less than 1% of women who are dealing with infertility would require both a donor egg and surrogacy. He also added that surrogacy is needed by a very small number of patients, perhaps only 2 out of every 100 who seek his assistance.


What are the issues surrounding surrogacy for single women?

There are only two categories of single women who are allowed access to surrogacy, as per the Act. These categories include women who are widowed or divorced. However, the regulations specify that the woman must use her own eggs, as emphasised by the recent notification. A 44-year-old unmarried woman has challenged these provisions in the Delhi High Court. She has questioned the link between marital status and eligibility for surrogacy.

Additionally, she has also contested the provision that mandates the use of the mother’s own eggs. The petitioner has argued that at her age, the use of donor eggs is recommended. The restriction on surrogacy for single persons, live-in couples, and LGBTQ couples has also been criticised. According to Dr Malpani, many single women wish to conceive and raise a child on their own in today’s age, and it is a shame that they still do not have access to surrogacy if required.


For which categories of women surrogacy is intended

Surrogacy is intended for women with a missing or abnormal uterus or who have had the uterus surgically removed. It’s also an option for women who have failed multiple rounds of IVF or have a condition that makes pregnancy life-threatening. 

Dr Malpani advises that surrogacy may be necessary for women with thin endometrial layers but not always for those who have failed IVF. However, surrogacy comes with potential complications, such as the child inheriting the surrogate’s immune system and not receiving breast milk during the initial months.


Rise of IVF and Future Prospects

India is estimated to have almost 28 million couples who are actively trying to conceive but are experiencing infertility. However, less than 1% of these couples are currently choosing to undergo IVF treatment, indicating a significant growth opportunity for the industry. As of 2020, the IVF market in India was valued at $750 million and is projected to reach $4 billion by 2030. It is essential to address the biggest obstacle to the adoption of IVF, which is access and affordability, as these estimates could change significantly.

IVF is poised to have a more significant impact on India’s fertility landscape in the future as awareness, research, and accessibility of healthcare continue to expand.


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