Amended surrogacy law likely to boost market potential, say experts

A recent amendment of surrogacy rules that will allow couples to use donor eggs or sperm for giving birth is expected to boost its market potential, according to industry insiders.

The Centre on Wednesday amended the Surrogacy (Regulation) Act 2021, effecting a change that comes after years of debate and advocacy and likely to benefit couples struggling with infertility.

Previously, the law mandated that both gametes (egg and sperm) used in surrogacy had to be from the intending parents. However, this placed hurdles for couples with medical concerns such as premature ovarian failure or male infertility.

The new amendment permits intending couples to utilise one donor gamete, either an egg or sperm, subject to certification by a district medical board confirming the necessity for such intervention. Consequently, one of the gametes must belong to the couple, while the other can be sourced from a donor after examination by the board. However, the amendment maintains the existing criteria for single women who are widowed or divorced — in case of surrogacy, they are required to use their own egg and have the option to choose a donor sperm.

Industry feels that revenues would go up as a result.

The amendment will add a revenue vertical, as it would also boost chances of conception, said Dipalie Bajaj, co-founder and chief executive officer (CEO) at Arva Health, a startup.

“The surrogacy market was thriving up until there were heavy regulations a few years ago, so this will restore a sizable market but coupled with regulation to ensure minimal malpractices. The amendment has broadened the options available to intending parents facing fertility issues, potentially increasing the success rates of assisted reproductive technologies.”

Larger players feel this would also protect patients’ rights, leading to better adoption.

Nitiz Murdia, managing director and co-founder of Indira IVF, an infertility speciality clinics chain, said that prior to the passing of the Surrogacy (Regulation) Act, 2021, restrictions on the definition, process and rights of the intending couple, mother, surrogate, and child were not established.

“This was so, especially in light of the mushrooming of IVF (in vitro fertilisation) and surrogacy clinics in India and no regulations to govern the space. The Surrogacy (Regulation) Act, 2021, adopts a stringent approach to prevent malpractices through measures such as prohibiting commercial surrogacy, imposing strict eligibility criteria, and regulating ART (assisted reproductive technology) clinics. Thus, the latest amendment is a testament to protecting the fundamental rights of patients,” said Murdia.

The Act has specified that only altruistic surrogacy is permitted, with specific eligibility criteria for couples and individuals. Couples must be of Indian origin, married (with the woman aged 23-50 and the man aged 26-55 years), with no surviving child and meet certain health conditions. Single women, of Indian origin, aged 35-45 years and either widowed or divorced, must meet similar criteria.

Surrogate mothers must be willing, altruistic, one who have been married and have their own child, aged 25-35 years, without prior surrogacy experience or three failed attempts, and not providing their own gametes.

Shilpa Singhal, consultant, Birla Fertility & IVF, said there was a possibility that any loophole or unintended consequences may lead to malpractices. “For example, despite the prohibition of commercial surrogacy, there may still be instances of exploitation or coercion of surrogate mothers by unscrupulous individuals or agencies operating outside the regulatory framework. Inadequate enforcement of regulations, lack of oversight, or loopholes in the legislation could potentially allow malpractices to occur. Therefore, it is essential for the authorities to closely monitor and regulate surrogacy practices.”

Added Doron Mamet-Meged, founder of Tammuz Family Surrogacy: “Surrogacy combined with egg or sperm donation is a standard procedure across countries that permit surrogacy. In fact, India was the sole country with a law prohibiting the use of gamete donors. The recent amendment to the law, drafted two years ago, represents a necessary correction, aligning it with global practices.”

Under the Act, 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 specified egg donors to be between ages 25 and 35 years, and they can donate eggs only once in their lifetime. The Act has also provided for medical insurance to the donors.