1. INTRODUCTION
Surrogacy in India is not the outcome of modern science only- it is deeply embedded in the culture and mythological tapestries of ancient Indian culture. Surrogacy Practices can be traced back in epic times such as Mahabharat and Vedic literature. One of the earliest examples comes from the anecdote of Devki and Vasudev. whose seventh son Balarama was transferred from Devki’s womb to the womb of Rohini (Vasudev’s other wife), at the time of the birth to save the child from the tyrannical King Kansha. This sacred transfer of the embryo, although told as a myth, is a reflection of the fundamental concept behind gestational surrogacy.
A significant situation occurs in the Mahabharata when Rashi Vyasa helped Gandhari by separating her prolonged foetus into jars, thereby giving birth to the Kauravas- an early echo of assisted reproduction. Such references show that surrogacy-like ideas are rooted in Indian tradition. The naturalisation process is now formalized by science for that we need a strong legal framework.
2. EXPLORING THE CONCEPT OF SURROGACY: DEFINITIONS AND KINDS
Surrogacy is the result of science and mythology. In a world where medical science empowers parenthood despite biological limitations. India finds itself caught at a crossroads between the law, ethics and technology. India has been a well-known destination for “Assisted Reproductive technologies (ART), such as surrogacy, In-vitro Fertilization (IVF), and Egg donation”, due to advanced medical facilities and comparatively affordable costs. While these technologies are a source of great promise to infertile couples. However, it also presents significant legal and ethical issues and challenges.
With the evolving nature of law, it becomes crucial for intended parents, surrogate mothers, fertility clinics, and donors to understand the governing laws for compliance, ethical clarity, and protection of rights.
2.1 HISTORICAL CONTEXT:
In India the first IVF was conducted in Kolkata and India got its first IVF baby named Kanupriya alias Durga on October 3, 1978. After the next few months, the birth of the first IVF baby, Louis Joy Brown was born in the UK through the same procedure of IVF. This leads to the journey for India in assisted reproduction technologies from the very moment.
DEFINITIONS:
· “Black’s Law Dictionary: Surrogacy is the process of carrying and delivering a child for another person.”
· “Encyclopaedia Britannica: Surrogate motherhood is the practice in which a woman bears a child for a couple unable to conceive.”
· “Warnock Report (1984): Surrogacy involves one woman carrying a child for another with the intention to hand over the baby after birth.”
3. KINDS OF SURROGACIES:
Initially, there were mainly two types of Surrogacies as per the Surrogacy (Regulation) Act,2021:
- Traditional Surrogacy- In this type of Surrogacy, it involves the Medically-assisted insemination of the surrogate mother’s eggs with the intended parent's sperm (male).In this scenario, the surrogate mother becomes the genetic mother of the child. It has the effect that the surrogate mother can have complications which are not only limited to physical but also emotional.
- Gestational Surrogacy: Gestational Surrogacy is an outcome of the advancement in medical science and research methodology. Most fertility doctors and clinics use gestational surrogacy. The procedure begins by fertilizing the eggs of the intended mother using the sperm of the indented father using the In-Vitro Fertilization (IVF) technique. The sperm and eggs can also be provided by a donor for fertilization. After this fertilized egg (embryo) is planted in the surrogate’s uterus, in this way the surrogate mother does not become the genetic mother of the surrogate-born child
- Altruistic Surrogacy: This can also be addressed as the “Expenses-only surrogacy” that means no financial reward will be there for the surrogate mother, only medical expenses are covered. It can be said whosoever opt for this kind of surrogacy can come into an agreement where the surrogate mother gives birth to the infant but without any monetary benefits however, only medical cost will be covered by the intended couples.
- Commercial Surrogacy: Surrogate is compensated beyond medical costs. We can say it is the agreement in which the intending parties for surrogacy enter into a contract firmly named as commercial contract. that foresees payment for the surrogate in exchange for the carrying and delivering the child.
India has acknowledged both gestational and traditional surrogacy in medical practice, but due to recent development in the legal frameworks permits only altruistic surrogacy with some restrictions and conditions. Commercial surrogacy, once prevalent, is now banned in India.
4. LEGAL FRAMEWORK: A RADICAL CHANGE IN INDIA
4.1 The Surrogacy (Regulation) Act, 2021
This Act was implemented on January 25, 2022, the law bans commercial surrogacy and legalizes only altruistic surrogacy to prevent exploitation.
Characteristics:
· Surrogates must only be compensated for medical expenses and insurance.
· Materialistic benefits and cash are not permitted
· Surrogacy must be non-commercial and within family boundaries.
4.2 Who can go for Surrogacy :
· Indian heterosexual married couples
· Age requirements:
Female partner: 23–50 years
Male partner: 26–55 years
· Couples must not have any living children, except in cases where an existing child has a disability or serious medical condition
· Even widowed or divorced women between the age of 35-45 years are also eligible for surrogacy services.
4.3 Eligibility Requirements for Surrogate Mothers:
· Must be an Indian citizen between 25-35 years of age
· Previously married with a minimum of one biological child
· Limited to serving as a surrogate on one occasion only
· Restraint from contributing personal genetic material (eggs)
· Mandate to complete comprehensive medical and psychological evaluations
· Mandatory insurance protection must be maintained for a 36-month period
4.4 Legal and Procedural Requirements
· Surrogacy approval must be sought from appropriate authority (District Board).
· Infertility certificates from a registered practitioner must be there for intended couples.
· Both parties involved in a legal surrogacy agreement need to sign it, and it should be registered as per the prescribed law.
· Courts and District Boards look after the approval process to protect rights.
4.5 Withdrawal and Medical Termination
· Surrogate can be revoked before embryo implantation
· Medical termination of pregnancy allowed under MTP Act, 2019
4.6 Multiple Parental Claims in Surrogacy Cases:
Surrogacy arrangements can create complex situations where several adults may have legitimate claims to parental rights over a single child. These potential claimants include:
1. The Biological Contributors:
o The woman who is ready for the process of surrogacy or provides the egg (genetic mother)
o The man who is willing to provide the sperm (genetic father)
2. The Birth Mother and Her Partner:
o The Surrogate mother, who is responsible for carrying and delivering the baby.
o The surrogate's husband, who may be legally presumed to be the father under many jurisdictions' laws
3. The Intended Parents:
o The individuals or couple who arranged for the surrogacy with the goal of raising the child as their own.
o These "commissioning parties" can be single people, married couples, or same-sex partners
o In some unconventional cases, polyamorous groups have also used surrogacy arrangements to form non-traditional families through various legal or informal agreements
These multiple potential parents create notable legal barriers while determining who has legitimate parental rights and responsibilities for the child born through surrogacy.
5. IVF AND EGG DONATION LAWS IN INDIA
5.1 The ART (Regulation) Act, 2021
It regulates the fertility treatment centres, IVF clinics and regularizes its procedure.
Principles clauses comprise of the following:
· It is mandatory to get registered with the National ART and Surrogacy Board.
· It mandates that to keep records; staff should be sufficiently qualified and have lab standards in the centres and clinics.
· Before entering for surrogacy consent of both the partners is necessary.
· It is the responsibility of the clinics to ensure data privacy and prohibit sex-selective techniques Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT)
5.2 Egg Donation Rules in India:
· Donors must be married for once in her lifetime, aged 23–35, with at least one living child.
· Limited to single donation and to one couple
· Donor identity remains anonymous (only medical info disclosed)
· Donors have no legal or parental rights
5.3 Ban on Embryo Donation
As per 2023 amendments (now partially reversed), donor gametes were initially prohibited in surrogacy—only intending couple’s gametes allowed.
6. RECENT AMENDMENTS IN INDIA’S SURROGACY LAWS (2023–2024)
In March 2023, the government introduced a controversial change that prohibited the use of donated eggs and sperm in surrogacy arrangements. This decision caused significant concern among couples struggling with infertility, as it severely limited their reproductive options.
Court Intervention A woman diagnosed with MRKH Syndrome (a condition affecting reproductive development) took the matter to the Supreme Court, arguing that the ban was discriminatory and violated reproductive rights.
Following legal challenges, the government revised the rules to provide more flexibility in 2024:
● Couples can now use donated eggs or sperm in surrogacy, but only when one partner has a medically certified fertility condition
● Single women who are divorced or widowed are allowed to use their own eggs combined with donor sperm
● These modifications aim to restore reproductive access for those who need it while maintaining the principle that surrogacy should remain a compassionate, non-commercial arrangement
This policy adjustment represents a compromise between completely restricting donor gametes and allowing unrestricted commercial surrogacy, attempting to balance medical necessity with ethical concerns.
7. CROSS-JURISDICTIONAL ANALYSIS:
a. United States
Surrogacy laws differ from state to state:
· States like California, Illinois allow commercial surrogacy.
· Whereas, New York and D.C. legalized it recently.
· Michigan has few restrictions despite being the first to permit surrogacy in 1980.
b. United Kingdom
· Only altruistic surrogacy allowed.
· Surrogacy agreements are not legally enforceable.
· Surrogates can retain the child until a parental order is granted.
c. France & Spain
· All forms of surrogacy are banned.
· Viewed as exploitation and commodification of women.
d. Ukraine
· Clear legal framework supports commercial surrogacy
· High success rate, low cost
· Popular destination for international surrogacy
e. Social, Ethical & Constitutional Concerns
● Exclusion of LGBTQ+, single men, live-in couples: potential violation of Articles 14, 19, and 21
● Surrogate as close relative: impractical in nuclear families
● No compensation: inadequate for physical and emotional labor
● Right to Reproductive Autonomy: affirmed in Suchita Srivastava v. Chandigarh Admin.
● Potential conflict with the constitutional promise of equality and liberty.
8. CASES WHICH PLAYED AN IMPORTANT ROLE IN SURROGACY LAW IN INDIA:
· Baby Manji Yamada v. Union of India: Child’s welfare above citizenship complications.
This case has become the history of the surrogacy law in India because it was the first case where the concept of surrogacy came into the picture before the Apex Court in India, and it was embedded as an important decision linked with surrogacy, which led to the development of surrogacy regulations in India. This case is very crucial from India’s perspective because the Supreme Court exclusively describes the concept of surrogacy and its definition. “The word “surrogate” is derived from the Latin word “surrogatus,” meaning “appointed to act in the place of.” This case also introduced the types of surrogacies and described many forms of surrogacy—most importantly, traditional and gestational surrogacy—and included altruistic and traditional surrogacy as well.
· Jayashree Wad vs Union of India (2016): In this case, the petitioner contended that there should be a complete ban on commercial surrogacy because it becomes a process for exploiting women for monetary gains– particularly those who are not well educated and are unaware of their rights.
● Ongoing petitions: Numerous cases are still in controversy, and PILs are pending before the Supreme Court regarding constitutional validity of the 2021 Act.
10. CONCLUSION
In Indian culture, motherhood has traditionally been revered as a divine gift and represents one of life's most treasured experiences for women. Countries like India where a woman is treated as “BAANJH” if she is unable to conceive a child due to any reason, no matter if it is because of female or male infertility, it will be the women who will be blamed. So, surrogacy is something like a gift for those family and parents who want to raise a child but couldn't because of some particular reason and it is not something in which we should feel shame. However, serving as a surrogate mother involves significant health risks and potential complications, even with medical supervision—care that many women cannot typically access or afford during their own pregnancies.
While numerous women's rights advocates and feminist organizations in India oppose commercial surrogacy due to exploitative practices, the reality remains that this industry has provided crucial financial support for many economically disadvantaged women. A complete ban would unfortunately eliminate this vital income source for vulnerable families.
Given India's well-established surrogacy sector, an outright prohibition at this stage could create significant enforcement difficulties and potentially drive the practice underground, beyond regulatory oversight. Additionally, with increasing rates of male infertility in India, eliminating commercial surrogacy options may deny couples their fundamental right to parenthood.
Rather than implementing a complete ban on commercial surrogacy, India requires robust legislation with stringent regulations and effective enforcement mechanisms. Such an approach would better address the legitimate concerns of all parties involved—protecting surrogate mothers, ensuring ethical practices, and preserving reproductive options for intended parents.
India's surrogacy and ART laws reflect a sincere effort to protect vulnerable women and uphold ethical medical practices. However, the restrictive framework often sidelines modern realities—excluding deserving individuals and diverse family structures from parenthood.
As medical science evolves and social norms shift, the law must adapt to:
● Embrace inclusivity (LGBTQ+, single, and foreign nationals)
● Provide fair compensation within ethical boundaries
● Recognize reproductive autonomy as a fundamental right
A more balanced, progressive, and rights-based approach is crucial for India's reproductive law regime to serve justice without discrimination.
REFERENCES
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