SURROGACY, IVF and EGG DONATION LAWS in INDIA

Divyani - 3rd year student of B.A.LL.B. at Christ (Deemed to be University), Pune

Introduction

The concept of assisted reproduction, though modern in its scientific form, can be traced back in the ancient mythologies of India. The Mahabharata tells the story of Gandhari, who carried her pregnancy for years and eventually gave birth to a mass of flesh, from which sage Vyasa divided and gave birth to one hundred Kaurava brothers in pots. This process resembles modern In vitro fertilization (IVF) and embryo transfer. Similarly, Kunti, through divine invocation (niyoga), gave birth to sons without physical union, indicating early cultural acknowledgment of alternative means of reproduction. These narratives reflect that the idea of unconventional reproduction is not alien to Indian society but has always been integrated with its spiritual and cultural imagination.

Legal Framework and Issues Surrounding Surrogacy, IVF, and Egg Donation in India

Today, modern advances like surrogacy, In vitro fertilization (IVF)[1], and egg donation have made these old notions a reality in the clinic. But science also brings about complexity, which raises important legal, moral, and social issues. India, which used to be a popular place for commercial surrogacy, has had to deal with problems including exploitation, treating women's bodies like goods, and finding a balance between reproductive freedom and regulation. Surrogacy is a way of getting help with having a baby in which a woman agrees to get pregnant and give birth to a child that other couple desires to raise. She could be the child's biological mother, which is the more common type of surrogacy, or she could have an embryo that is not related to her is implanted inside. In ancient times, it was common for a woman to have a child for a couple to raise, with the male half of the marriage usually being the kid's biological father. For some parents, surrogacy is the only way to have a child who is biologically linked to them. The Latin word "subrogare," which meaning "to substitute," is where the word "surrogate" comes from. In other words, this is, in essence, a free surrogacy. Surrogacy (Regulation) Act, 2021 says about a woman who is a widow or a divorcee between the age of 35 to 55 years, or a couple, classified as a lawfully married woman and man, can benefit of surrogacy if they have a medical condition necessitating this choice. The couple shall be a legally married Indian man and woman, the guy shall be between the ages of 26-55 years, and the woman shall be between the ages of 23-50 years, and shall not have any previous biological, adoptive, or surrogate child unless the child is mentally or physically disabled. The statute forbids commercial surrogacy and is punishable with a term of 10 years and a fine of up to 10 lakhs. The legislation allows only altruistic surrogacy where no money trades hands and where a surrogate mother is genetically linked to individuals seeking a child. The Surrogacy (Regulation) Act, 2021[2] has specified all the crucial terms associated to this process, like surrogacy, altruistic surrogacy, and commercial surrogacy, surrogate mother, and couple, etc. The surrogacy process cannot be availed by single men or NRIs. The State/UT’s appropriate authority shall offer certificate of essentiality and eligibility to the intending couple/woman and Surrogate mother. The Surrogate mother is entitled to insurance coverage, which will be obtained by the intended couple/ intending lady for a period of 36 months in favour of the surrogate mother, covering postpartum delivery difficulties. In the case of Baby Manji Yamada v. Union of India (2008), a Japanese couple came to India for surrogacy. The surrogate mother delivered birth, but the couple divorced before the birth. The Japanese father wanted custody of the child, but Indian law didn’t expressly address the rights of foreign parents in surrogacy. The Supreme Court permitted the grandmother to take the kid, seeing the child’s wellbeing as vital. Suchita Srivastava v. Chandigarh Administration [2009] a mentally challenged rape survivor and whether she should be compelled to terminate her pregnancy. The SC decided that the freedom to reproductive autonomy is part of Article 21 (Right to Life and Personal Liberty) that a woman has the freedom to take reproductive decisions.

In vitro fertilisation (IVF) is a procedure of fertilisation in which an egg is fertilized with sperm. The technique entails monitoring and boosting the ovulatory process, then taking an ovum or ova (egg or eggs) from the ovaries and enabling sperm to fertilize them in a culture medium in a laboratory. After a fertilised egg (zygote) undergoes embryo culture for 2–6 days, it is put inside the uterus, to establish a viable pregnancy. Through egg donation and IVF, many women who have achieved menopause, have infertile spouses, or have idiopathic female reproductive concerns, can still become pregnant. After the IVF therapy, some couples got pregnant without any fertility treatments. In 2023, it was anticipated that twelve million children had been born worldwide utilizing IVF and other assisted reproductive procedures. The Assisted Reproductive Technology (Regulation) Act, 2021[3], deals about IVF rules in India. All ART clinics and banks must register under the National ART and Surrogacy Board. The couple should be married within the age range of ladies from 23 years to 50 years, but for men it is 26 years to 55 years. The couple should not have a biological/ adoptive child of their own. A woman can donate eggs only once in her lifetime, and not more than seven eggs, and a male can donate sperm no more than once every six months, and only after screening. There should be consent from both sides, and additionally, the identity must be kept hidden. Choosing of sex is strictly not allowed, and anybody conducting a clinic without approval may have to face 5 to 10 lakh and imprisonment.

The Surrogacy Regulation Act 2021 governs egg donation in India to safeguard the security of both persons involved in the therapy. During the egg donation therapy, fertility clinics establish an agreement between egg donors or infertility couples or people. There are particular situations for egg donation in which mother women must be married with a valid age from 25 to 35 years old who have at least one biological kid, and able to deliver eggs only once in their lives. The complete procedure of egg donation is strictly altruistic, with no financial or moral compensation for external expenses such as medical wages. Both the intended parents and the resulting child are unaware of their identity. Egg donation can only be facilitated by clinics that are registered with the National ART and Surrogacy Board. Egg exchange or sale is totally illegal, and offenses will result in serious penalties. These rules strive to protect contributors’ health and wellbeing, foster transparency, and eliminate exploitation. Only married women can donate eggs if she has one biological kid. However, the age of the mother should be between 21 to 35 years as per the vision of health condition. Permanent frequency set in which a woman can contribute eggs only once in her lifetime under the supervision of new Indian guidelines to prevent exploitation or health problems. Formed consent in which the donor must offer written, and informed consent for the fertility procedures. On the other hand, egg donors are obliged to undertake medical, and psychological therapy to assure the hazards that might occur during the egg donation. Only fertility clinics registered under the rule of National Assisted Reproductive Technology, and surrogacy boards are allowed to deliver egg donation. If any clinic or persons breach the regulations or laws that are issued by the Indian government, then those clinics will be fineable, and pay for the legal penalties such as cancellation of their clinic registration. In the case of K. Kalyani v. Union of India (2010) , a lady challenged the recommendations provided by the Indian Council of Medical Research (ICMR) on ART operations, specifically concerning age limitations and the right to receive IVF. The Court maintained the ICMR rules, finding that regulation was necessary to ensure ethical and medical safety. Yashodhara Oberoi v. Union of India (2020) the petitioner, a single woman, challenged the eligibility conditions in draft ART Bill, arguing it violated her reproductive autonomy by preventing single women from accessing ART services and the court held that though the court did not give a final verdict (as the bill was not yet a law), the case raised important constitutional questions about equality (Article 14) and personal liberty (Article 21).[4]

Conclusion

The evolution of assisted reproductive technologies like surrogacy, IVF, and egg donation reveals a remarkable junction between old cultural narratives and cutting-edge medical research. While Indian mythology had already acknowledged unusual forms of conception through myths like that of Gandhari and Kunti, today’s legal system must tackle the practical, ethical, and social issues brought by these modern medical procedures. Laws such as the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 indicate crucial steps toward preserving the rights and well-being of all parties involved—intended parents, surrogate mothers, and egg donors. These policies aim to minimize exploitation, regulate ethical medical practice, and uphold reproductive autonomy within a specified legal framework. However, concerns linked to individual rights, inclusion for single or LGBTQIA+ individuals, and equal access to reproductive care still deserve further legal and legislative attention. As science continues to improve, the Indian legal system must strike a balance between cultural values, scientific innovation, and constitutional freedoms, ensuring that the path to parenthood through assisted reproduction remains just, inclusive, and humane.