1. INTRODUCTION
Dreams fuel surrogacy decisions, the dreams of parenthood, of giving life and of building families beyond biological constraints. In India, the legal landscape of reproductive governance has undergone a significant transformation with the enactment of two pivotal legislations: the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.
India’s surrogacy laws regulate reproductive practices to ensure ethics and protect stakeholders. While curbing exploitation, they face criticism for excluding LGBTQ+ individuals, single parents, and vulnerable women. Beyond regulation, these laws deeply influence who may become a parent, a surrogate, or a legally recognized child.
2. SURROGACY: MEANING AND TYPES
The term “surrogacy” originates from the Latin word subrogare, meaning “to substitute” or “to appoint in place of another.” As per American Law Reports, surrogacy is typically defined as “...a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child's birth”. It enables individuals and couples, such as women with uterine anomalies, those medically unfit for pregnancy, single men and same-sex couples, to experience parenthood.
Surrogacy is primarily divided into two medical types- traditional and gestational. In traditional surrogacy, the surrogate is inseminated with the intended father's sperm, making her the genetic mother of the child. This method is less commonly used today due to the complex emotional and legal implications. On the other hand, gestational surrogacy involves the implantation of an embryo—created using the gametes of the intended parents or donors—into the surrogate’s uterus. In this case, the surrogate has no genetic relationship to the child she carries.
Based on compensation, surrogacy is further categorized as commercial or altruistic. Commercial surrogacy involves financial payment to the surrogate beyond medical and related expenses. In contrast, altruistic surrogacy permits only reimbursement of medical costs and insurance coverage, with no additional monetary gain. The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy and permits only altruistic surrogacy.
3. LEGISLATIONS REGULATING SURROGACY LAWS IN INDIA
Surrogacy in India has transitioned from a largely unregulated practice to a strictly governed and closely monitored legal framework. The primary legislative instruments governing surrogacy and assisted reproduction in India are the Surrogacy Regulation Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021.
3.1. KEY PROVISION OF THE SURROGACY REGULATION ACT, 2021
The Surrogacy Regulation Act 2021 emerged as a response to concerns regarding exploitation, commercialization, and the commodification of reproductive services. The Act seeks to prohibit commercial surrogacy, promote altruistic surrogacy, and protect the rights of all stakeholders—especially surrogate mothers and children born through surrogacy.
• Section 3 prohibits unregistered surrogacy clinics from conducting surrogacy-related procedures and bans commercial surrogacy, sex-selective practices, and embryo storage for unauthorized purposes. It also prohibits advertising or inducement of women for surrogacy roles.
• Section 4 restricts surrogacy to altruistic purposes only and mandates a certificate of essentiality and eligibility for intending couples, granted upon proof of medical necessity, legal custody intent, and three-year postpartum insurance for the surrogate. Only gestational surrogacy is permitted, ensuring the surrogate has no genetic link to the child.
• Section 5 prohibits anyone, including relatives, from facilitating surrogacy outside the conditions set in Section 4.
• Section 10 outlaws forced abortion of surrogate pregnancies, unless specifically allowed under prescribed medical conditions.
• Sections 11 and 12 require all surrogacy clinics to be registered and meet standards concerning infrastructure, staff qualifications, and equipment. Certificates are valid for three years and subject to renewal.
• Section 17 empowers the National Assisted Reproductive Technology and Surrogacy Board to lay down regulations and supervise clinics, while Section 26 mandates the formation of State Boards to implement and monitor compliance at the local level.
• Sections 38 to 41 of the Surrogacy (Regulation) Act, 2021 establish stringent penalties to ensure compliance and prevent exploitation.
• Section 38: Bans commercial surrogacy, broker involvement, advertising, and exploitation; violators face up to 10 years’ imprisonment and ₹10 lakh fine.
• Section 39: Penalizes professionals for other breaches with up to 5 years’ jail and ₹10 lakh fine; repeat violations may lead to medical license suspension.
• Section 40: Punishes violations of the altruistic model with 5 years’ jail and ₹5 lakh fine for first-time offenders, and 10 years’ jail and ₹10 lakh fine for repeat offenders.
• Section 41: Covers unspecified offenses with up to 3 years’ jail, ₹5 lakh fine, and ₹10,000 daily fine for continued non-compliance.
3.2. Recent Amendment to Surrogacy Rules
The Central Government has revised the Surrogacy (Regulation) Rules, 2022, introducing a provision that allows couples facing genuine medical challenges to access surrogacy with the use of donor gametes. Importantly, at least one gamete—either the egg or sperm—must originate from the intending couple. This regulatory shift represents a notable advancement toward inclusivity and flexibility within the context of altruistic surrogacy in India.
4. KEY PROVISION OF THE SURROGACY REGULATION ACT, 2021
The Assisted Reproductive Technology (Regulation) Act, 2021 introduces a structured legal framework for regulating India’s rapidly expanding fertility sector, including practices such as IVF and gamete donation. The legislation mandates that all ART clinics and gamete or embryo banks must register under Section 9, ensuring adherence to both medical and ethical standards. Oversight is established through the creation of a National ART and Surrogacy Board (Section 3) at the central level and corresponding State Boards (Section 6), which are responsible for implementation and for maintaining the requisite standards across the country.
The Act explicitly safeguards the interests of all parties involved—donors, intended parents, and children—by requiring informed consent, upholding confidentiality, and providing legal recognition of parentage. Furthermore, it prohibits unethical practices, such as the commercial sale or trafficking of gametes and embryos, and the involvement of intermediaries in donor procurement, as outlined in Section 33.
Violations of these provisions are subject to significant penalties, including fines ranging from ₹5 to ₹20 lakhs and imprisonment for repeat offences, underscoring the Act’s commitment to ethical and lawful conduct within the ART industry.
• Sections 33 and 34.
Both the acts together create a dual framework that governs the entire process of reproductive assistance, from surrogacy arrangements to the management of clinical services. While these Acts represent a significant step toward standardized regulation, concerns about inclusivity and rigid eligibility criteria remain prominent.
5. LIVES AFFECTED BY THE LAWS
5.1. Intended parents
• Legal Clarity on Parentage- The legislation explicitly establishes the intended parents as the legal parents of the child from birth, thereby minimizing legal uncertainties regarding custody and inheritance. By outlining clear eligibility criteria and procedural guidelines, the framework creates a stable legal environment that safeguards the rights of intended parents, surrogates, and children.
• Judicial Recognition of Reproductive Rights- In B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court recognized reproductive autonomy as an essential aspect of the right to privacy. The court also referenced the US Supreme Court’s decision in Jack T. Skinner v. State of Oklahoma, which identified the right to reproduce as a fundamental civil right. Similarly, in Javed v. State of Haryana, while the Supreme Court upheld the implementation of the two-child norm for Panchayati Raj elections, it notably stopped short of rejecting the fundamental human right to procreation.
• Restricted Eligibility and Exclusion- The current legislation restricts altruistic surrogacy to married, heterosexual, clinically infertile couples, effectively excluding LGBTQIA+ individuals, single persons, and divorced men from access. This narrow eligibility criterion clearly demonstrates a heteronormative bias. Notably, this exclusion stands in stark contrast to the Supreme Court’s decision in Navtej Singh Johar v. Union of India, which decriminalized homosexuality and expressly affirmed the rights of LGBTQ+ individuals.
• Administrative delays and procedural burdens- The extensive procedures—mandatory registration, psychological assessments, medical evaluations, and a mountain of formal paperwork—tend to significantly delay the entire process. For couples eager to embark on parenthood, this bureaucratic labyrinth isn’t just time-consuming; it can be genuinely overwhelming on both emotional and practical levels. Instead of a straightforward journey, they often find themselves navigating a complex and frustrating system.
5.2. Surrogate mothers
Surrogate mothers are primary contributors to the process, yet they are often objectified based on fertility, appearance and socio-economic status, rather than recognized as equal stakeholders.
• Physical & Mental Health Safeguards- The Act requires both mental and physical evaluations for surrogates, ostensibly to safeguard their wellbeing and preparedness. Yet, in practice, these assessments often fail to engage with broader socio-economic factors that may compel individuals toward surrogacy. Furthermore, considerations regarding long-term support and care for surrogates remain largely unaddressed within the framework of these evaluations.
• Altruistic model promoting forced labour- Surrogacy, particularly among women from low-income backgrounds, often shifts from an act of altruism to a transactional arrangement driven by financial necessity. What’s frequently referred to as the “womb renting business” highlights a troubling dynamic: pregnancy becomes a form of contract-based labor. This commodification of the female body under economic pressure raises significant ethical concerns, challenging the notion that surrogacy is purely a selfless act.
• Legal Protections vs. Reality- Contractual protections exist on paper but are inconsistently enforced. Violations range from poor healthcare to lack of postnatal support or social ostracism.
• Long-Term Social & Economic Fallout- Post-delivery, many surrogates return to financial hardship with little sustained support. Their decision often stems from need, not empowerment—leaving them vulnerable even after the process ends.
5.3. Children born through surrogacy
• Legal Recognition (Section 8, Surrogacy Regulation Act, 2021)- Children born through surrogacy are legally considered the biological children of the intending couple or intending woman and are entitled to all rights and privileges of a natural child under Indian law.
• Clarity on Custody and Inheritance- The Acts eliminate legal ambiguities related to parentage, safeguarding the child's rights from birth, including custody and inheritance.
• Child Welfare Safeguards- Mandatory health screenings, certification of surrogacy agreements, and regulated ART procedures are required to ensure the child’s physical and emotional well-being.
• Healthcare Standards- The ART Act mandates high-quality healthcare and follow-up services through licensed clinics, aimed at improving long-term outcomes for children born via assisted reproduction.
6. CASE STUDIES
The Baby Manji Yamada case involved a Japanese couple who travelled to Anand, Gujarat, for surrogacy services. After the couple divorced mid-process, the child was born and left in India under care. The biological father, unable to adopt the child due to Indian laws barring single men from adopting, faced legal hurdles in taking the child to Japan. The child’s grandmother’s request for a passport was denied, leading to a Supreme Court petition. The court facilitated the issuance of a “Certificate of Identity” for international travel, marking a landmark judgment in cross-border surrogacy.
In the Jan Balaz case , a German couple had twins through an Indian surrogate mother using the father’s sperm and a donor egg. The surrogate’s name was recorded on the birth certificate, not the intended mother’s. The couple faced legal challenges over the nationality and citizenship of the children. Although initially issued passports, the authorities later demanded their surrender. The Gujarat High Court, relying on the Baby Manji precedent, ordered the issuance of Certificates of Identity after thorough investigation, allowing the twins to leave India.
7. CHALLENGES AND UNRESOLVED ISSUES
The rising prevalence of surrogacy is, in many ways, overshadowing the adoption process—leaving countless children in need of families while societal focus shifts elsewhere. This trend arguably undermines the broader goals of social welfare and child protection.
Moreover, insufficient regulation of assisted reproductive technologies has introduced significant ethical concerns. Practices such as sex selection and the pursuit of so-called "designer babies"—where physical traits are selected in advance—are no longer the stuff of science fiction, but emerging realities that challenge both medical ethics and societal norms.
Socioeconomic disparities are also exacerbated by surrogacy arrangements. Typically, affluent individuals or couples contract women from less privileged backgrounds to act as surrogates, reinforcing existing class divisions and perpetuating reproductive inequality.
Although the Supreme Court has endorsed altruistic surrogacy, the practical implementation of such a framework remains fraught with challenges. Weak enforcement mechanisms increase the risk of exploitation and invite moral ambiguity, revealing a gap between legal ideals and social realities.
Ultimately, a narrow focus on regulatory compliance is insufficient. There is a pressing need for deeper ethical reflection, inclusive public discourse, and comprehensive educational initiatives to address the far-reaching implications of surrogacy. Only by engaging with these broader questions can society hope to ensure that reproductive technologies are used in ways that genuinely promote justice and human dignity.
8. CONCLUSION
The enactment of the Surrogacy Regulation Act 2021 and the Assisted Reproductive Technology Act 2021 represents a significant milestone in India’s approach to regulating reproductive technologies. However, while these legislative measures provide enhanced legal certainty and strict ethical oversight, they also generate substantial debate regarding inclusivity, economic fairness, and cultural representation. A humane, equitable approach is essential for truly transformative reproductive governance.
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