Abstract
India’s transition from a global hub for commercial surrogacy to a jurisdiction enforcing a strictly altruistic model under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 has sparked significant legal, ethical, and constitutional debates. This article critically examines the key provisions of the 2021 legislation, focusing on its prohibition of commercial surrogacy, restrictive eligibility criteria, and the mandatory altruistic framework. It evaluates the implications of these laws on reproductive autonomy, gender justice, and equality, particularly for single persons, LGBTQ+ individuals, and economically disadvantaged women. Drawing on constitutional guarantees under Articles 14, 15, and 21, and relevant Supreme Court jurisprudence, the article argues that the present legal regime, though intended to prevent exploitation, veers into exclusion and paternalism. It further explores the intersection of surrogacy laws with other statutes, including contract law, the MTP Act, and juvenile justice provisions, while contrasting India’s approach with global surrogacy frameworks. The article concludes by calling for an inclusive, rights-based, and ethically balanced legal framework that affirms reproductive justice without criminalizing consensual reproductive labor.
Keywords: Assisted Reproductive Technology (Regulation) Act, 2021, Reproductive Rights, Altruistic vs Commercial Surrogacy, Constitutional Rights and Surrogacy, Bodily Autonomy, LGBTQ+ and Surrogacy Law, Ethical Issues in Assisted Reproduction, Reproductive Justice, Surrogate Mother’s Rights, Indian Constitutional Law, ART Regulation in India, Global Surrogacy Models.
1. Introduction
India, once the epicenter of global surrogacy, has transformed its legal landscape with the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. These laws mark a significant departure from its earlier laissez-faire approach, shifting towards a strictly altruistic model that bans commercial surrogacy altogether. While the intent is to curb exploitation, concerns over bodily autonomy, inclusivity, and reproductive rights have brought these legislations under critical scrutiny.
This article explores the legal and ethical ramifications of these laws, examining their constitutional dimensions, interrelated statutes, and the global comparative context.
2. From Fertility Capital to Regulated Altruism
India gained international attention in the early 2000s for offering low-cost, high-quality surrogacy services, attracting a large number of foreign nationals. This was facilitated by the absence of statutory regulation, relying mainly on the ICMR Guidelines, 2002 and case-specific judicial recognition. In Baby Manji Yamada v. Union of India, the Supreme Court upheld the validity of commercial surrogacy and the custody rights of foreign parents.[1]
However, the absence of protective legislation led to:
- Surrogates being underpaid or abandoned post-delivery
- Nationality and parentage disputes
- Commodification of women’s reproductive capacity
In response, the government banned foreigners from commissioning surrogacy in 2015 and passed the Surrogacy (Regulation) Bill in 2019, which was finally enacted in 2021.
3. The Surrogacy (Regulation) Act, 2021:
- Ban on Commercial Surrogacy: Section 38 strictly prohibits commercial surrogacy, prescribing imprisonment up to 10 years and a fine up to ₹10 lakh for contravention.[2]
- Altruistic Surrogacy Only: Only altruistic surrogacy is permitted under Section 4(b)(ii), which allows for no financial compensation beyond medical expenses and insurance.[3]
- Eligibility of Intending Couple:
- Must be Indian citizens
- Only heterosexual married couples with documented infertility are allowed
- Woman: 25–50 years, Man: 26–55 years.[4]
- Surrogate Mother Conditions:
- Must be a married woman aged 25–35 with one biological child.
- Can act as surrogate only once.
- Must be a close relative of the intending couple.[5]
- National and State Surrogacy Boards: These regulatory bodies supervise surrogacy clinics and ensure legal compliance.[6]
- Certificate of Essentiality and Eligibility: The intending couple must obtain certification from a competent authority before proceeding.[7]
4. The ART (Regulation) Act, 2021: Complementary Framework
This Act regulates IVF, sperm/egg donation, and embryo transfer. Key provisions include:
- Registration of all ART clinics and banks (Section 15).[8]
- Informed consent from donors and patients (Section 22).[9]
- Ban on sex-selective ART and sale of gametes (Sections 26, 32, 33).[10]
These two Acts operate in tandem to regulate assisted reproduction comprehensively.
5. Constitutional Implications
- Article 14 – Equality before Law: The exclusion of single persons, LGBTQ+ individuals, and live-in couples lacks a rational nexus and may violate the equal protection clause.[11]
- Article 21 – Right to Life and Liberty: The Supreme Court in Suchita Srivastava v. Chandigarh Administration recognized reproductive autonomy as integral to personal liberty.[12] Denying access to surrogacy infringes this right.
- Article 15 – Non-discrimination: The law may be challenged as discriminatory based on marital status, gender, and sexual orientation, which is unconstitutional post-Navtej Singh Johar and Puttaswamy judgments.[13]
- Directive Principles – Articles 38 and 39(e): While the state is duty-bound to prevent exploitation, this must be done without curtailing the economic autonomy of women who may voluntarily choose surrogacy.[14]
6. Ethical Concerns and Social Ramifications
· Informed Consent vs. Familial Coercion
Mandating a “close relative” as a surrogate may increase emotional coercion, especially in patriarchal households.[15]
· Criminalizing Reproductive Labor
By outlawing commercial surrogacy entirely, the law denies surrogate mothers the ability to earn fair compensation, reducing reproductive labor to altruistic charity.[16]
· Exclusion and Disenfranchisement
The narrow eligibility excludes:
- Single women
- LGBTQ+ couples
- Divorced/widowed individuals
- Foreign nationals
This exclusion contradicts the evolving notion of family and parenthood.[17]
7. Rights of the Child
The Act is silent on:
- Custodial disputes
- Parentage recognition in complex family structures
- Identity rights of the child (as recognized in the UNCRC)[18]
8. Interrelated Laws and Statutory Provisions
- Indian Contract Act, 1872: Surrogacy agreements fall under contract law; however, altruism-based models limit enforceability of compensation clauses.[19]
- Medical Termination of Pregnancy (Amendment) Act, 2021: If the surrogate seeks abortion, it raises conflicts between the rights of the surrogate and the commissioning couple.[20]
- Juvenile Justice (Care and Protection of Children) Act, 2015: May apply to the custody and adoption of children born out of failed or disputed surrogacy arrangements.[21]
- The Transgender Persons (Protection of Rights) Act, 2019: While aimed at protecting rights of transgender individuals, the Surrogacy Act effectively denies them reproductive rights, causing a legal inconsistency.[22]
9. Global Comparative Overview
Country |
Surrogacy Type |
Legal Framework |
|
USA |
Both (varies by state) |
Strong contractual enforcement |
|
UK |
Altruistic only |
Requires parental orders post-birth |
|
Ukraine & Georgia |
Commercial permitted |
Open to foreign couples |
|
Australia |
Altruistic only |
Criminalizes commercial surrogacy |
|
Canada |
Altruistic only |
Reasonable medical reimbursements allowed |
India now has one of the most restrictive surrogacy regimes, arguably stifling choice and autonomy.
10. The Way Forward: Toward Inclusive Regulation
- Revisit the blanket ban on commercial surrogacy; a regulated compensation model with rights safeguards is preferable.
- Expand eligibility to single, divorced, widowed, and LGBTQ+ persons.
- Introduce counselling and legal aid for surrogate mothers.
- Ensure judicial review of exclusionary provisions based on evolving constitutional jurisprudence.
11. Conclusion
India's surrogacy laws have shifted from market liberalism to state paternalism. While this change seeks to uphold ethics and curb exploitation, it has inadvertently excluded vulnerable and non-traditional family structures. The ethical dilemma of surrogacy cannot be resolved merely through bans. Instead, a robust regulatory framework grounded in autonomy, dignity, and consent is essential.
As the Indian Constitution evolves to embrace personal liberty and equality, so too must reproductive laws adapt—not to restrict motherhood, but to protect its multiple meanings.
Work Cited
[1] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
[2] Section 38, The Surrogacy (Regulation) Act, 2021.
[3] Section 4(b)(ii), ibid.
[4] Rule 14, Surrogacy (Regulation) Rules, 2022.
[5] Section 4(iii)(c), The Surrogacy (Regulation) Act, 2021.
[6] Sections 14–18, ibid.
[7] Section 7, ibid.
[8] Section 15, The Assisted Reproductive Technology (Regulation) Act, 2021.
[9] Section 22, ibid.
[10] Sections 21, 23, ibid.
[11] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
[12] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
[13] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[14] Article 39(e), Constitution of India, 1950.
[15] SAMA Resource Group for Women and Health, Birthing A Market: A Study on Commercial Surrogacy, (2012).
[16] Mohapatra, Amrita, “Surrogacy in India: Misplaced Altruism or Market Justice?”, NUJS Law Review, Vol. 6, Issue 3 (2013).
[17] Prabha Kotiswaran, “Revisiting the Law on Surrogacy in India”, Indian Journal of Gender Studies, Vol. 25, Issue 3 (2018).
[18] UN Convention on the Rights of the Child, 1989, Articles 7 and 8.
[19] Indian Contract Act, 1872, Sections 10 and 23.
[20] Medical Termination of Pregnancy (Amendment) Act, 2021, Sections 3B and 4.
[21] Juvenile Justice (Care and Protection of Children) Act, 2015, Sections 38 and 56.
[22] The Transgender Persons (Protection of Rights) Act, 2019, Section 3.