Author: Fiza Haque a student at J.B Law College
Introduction
In the age of rapidly evolving reproductive technologies, the concept of family has undergone a profound transformation. India, with its advanced medical infrastructure and comparatively affordable treatment costs, emerged as a global hub for surrogacy in the early 2000s. However, the absence of legal safeguards and rising instances of exploitation, particularly of poor and vulnerable women, triggered ethical, legal, and human rights concerns. To address these gaps, the Indian government introduced the Surrogacy (Regulation) Act, 2021, marking a significant shift from a loosely regulated commercial model to a strictly monitored altruistic one. While the law aims to prevent the commodification of women’s bodies and ensure ethical practices, it has also drawn criticism for its narrow definition of family, exclusionary eligibility criteria, and potential infringement on reproductive autonomy.
Historical Context
India permitted commercial surrogacy since 2002, making it one of the few countries to legalize the practice early.The Law Commission of India, in its 228th Report (2009), recommended banning commercial surrogacy while allowing altruistic surrogacy under strict regulations.
Features of the Surrogacy (Regulation) Act, 2021
• Ban on Commercial Surrogacy:
Only altruistic surrogacy is permitted.
• Eligibility Criteria for Intended Parents:
• Only Indian heterosexual married couples (man and woman) are eligible.
• The couple must be married for at least five years.
• Woman age should be around 23-50 and the man around 26–55.
• They must be childless or have a child with a life-threatening condition.
• Eligibility for Surrogate Mother:
• Only a close relative can become a surrogate.
• She can undergo surrogacy only once in her lifetime.
• Establishment of Regulatory Bodies:
• National and State Surrogacy Boards for policy and regulation.
• Appropriate Authorities to grant eligibility certificates and monitor clinics.
• Penalties:
Stringent punishments, including up to 10 years of imprisonment and fines, for engaging in or promoting commercial surrogacy.
Critical Analysis
a. Exclusion of Key Stakeholders
The Act excludes:
• Single individuals
• Unmarried couples
• Same-sex couples
• Foreign nationals
This exclusion violates the principles of equality and non-discrimination under Article 14 and the right to personal liberty under Article 21 of the Indian Constitution.
b. Violation of Reproductive Autonomy
By limiting the option of surrogacy only to married heterosexual couples and prescribing a five-year waiting period, the Act curtails an individual’s autonomy over reproductive choices.
c. Surrogacy Only Once
Limiting a woman to be a surrogate only once and only for close relatives restricts her bodily autonomy and assumes she cannot make informed decisions about her own health and life.
d. Overregulation vs. Protection
While the Act seeks to curb exploitation, the heavy bureaucratic procedures and tight restrictions risk pushing the practice underground, increasing the chances of unsafe or illegal arrangements.
Comparative Perspective
Countries like Ukraine and Georgia allow regulated commercial surrogacy, while the UK permits altruistic surrogacy with flexible parentage rules. India’s restrictive approach contrasts sharply with these progressive models and may deter innovation in reproductive technology rights.
Way Forward and Recommendations
• Inclusive Eligibility: Broaden access to include single parents, LGBTQ+ individuals, and live-in couples.
• Independent Consent Framework: Allow willing women to be surrogates even if not relatives, with independent counselling and safeguards.
• Compensation for Labour: Altruism should not mean zero compensation. Basic support and loss of income should be covered.
• Awareness and Training: Create educational programs to ensure ethical, informed surrogacy practices and reduce stigma.
Abstract:
Surrogacy, a method of assisted reproduction, has been a subject of intense ethical, legal, and social debate in India. The Surrogacy (Regulation) Act, 2021, enacted to regulate and restrict commercial surrogacy while promoting altruistic surrogacy, has stirred controversy for its limitations and lack of inclusivity. This article critically analyzes the key provisions of the Act, evaluates its implications on reproductive rights, and suggests reforms to ensure a more equitable legal framework.
Case Laws
1. Baby Manji Yamada v. Union of India (2008) 13 SCC 518
• Facts:
A Japanese couple entered into a surrogacy agreement in Gujarat. But the couple got divorced before the birth of the child. The father wanted to take custody of the child, but due to the lack of laws on surrogacy and visa complications, the baby was stuck in India.
• Held:
The Supreme Court allowed the father to take the child to Japan. The Court recognized the legality of surrogacy in India at the time and highlighted the need for proper legal regulation.
• Significance:
This case exposed the loopholes in India’s legal system and was a key factor behind the push for a formal surrogacy law.
2. Jan Balaz v. Anand Municipality & Ors., AIR 2010 Guj 21
• Facts:
A German couple commissioned an Indian surrogate. The children born through surrogacy were denied German citizenship due to legal complications.
• Held:
The Gujarat High Court ruled that the commissioning parents were the legal guardians. However, the case also highlighted the citizenship and parentage issues in cross-border surrogacy.
• Significance:
It pushed the Indian government to consider the implications of international commercial surrogacy and led to bans on foreigners using Indian surrogates in later drafts of the law.
3. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
• Held:
The Supreme Court recognized the right to privacy as a fundamental right under Article 21.
• Relevance to Surrogacy:
Reproductive choices, including the decision to become a parent or act as a surrogate, fall within the ambit of privacy and personal liberty. The restrictive provisions of the Surrogacy Act may be challenged based on this precedent.
Conclusion
The regulation of surrogacy in India marks a significant legal and moral juncture, balancing the prevention of exploitation with the protection of individual reproductive autonomy. The Surrogacy (Regulation) Act, 2021, though a well-intended piece of legislation, reflects a paternalistic and moralistic approach that falls short of constitutional ideals such as equality, personal liberty, and non-discrimination.
From a constitutional perspective, the Act invites scrutiny under Articles 14, 15, and 21. It disregards the rights recognized in landmark cases like K.S. Puttaswamy, which affirmed privacy and bodily autonomy, and Suchita Srivastava, which established reproductive choice as a fundamental right. The law also neglects to provide a fair compensation framework for surrogate mothers, treating their contribution as a form of unpaid emotional service rather than legitimate reproductive labor deserving of recognition.
India now stands at a crossroads. With its aspirations to be a progressive, rights-based democracy, it must revisit its legal framework on surrogacy to ensure it is inclusive, ethically sound, and constitutionally compliant. A truly just surrogacy law must protect vulnerable women from exploitation without disempowering them, and it must expand access without prejudice based on gender, marital status, or sexual orientation. Moving forward, legislative reforms must be guided by scientific reasoning, human rights jurisprudence, and a commitment to dignity—ensuring that the law not only prevents abuse but also empowers choice, equality, and compassion in matters of parenthood.
FAQs
1)Is surrogacy legal in India?
Yes. Surrogacy in India is legal but regulated under the Surrogacy (Regulation) Act, 2021, which bans commercial surrogacy and permits only altruistic surrogacy.
Read the full Act here:
Surrogacy (Regulation) Act, 2021 – India Code
2) Who can opt for surrogacy in India?
Only Indian heterosexual married couples are eligible if:
• They’ve been married for at least 5 years.
• The wife is aged 23–50, and the husband 26–55.
• They are infertile or medically unable to conceive.
Eligibility Details (See Chapter III):
Surrogacy Act – Chapter III (India Code)
3) Can single individuals or LGBTQ+ couples opt for surrogacy in India?
No. The Act currently excludes:
• Single men or women
• Live-in partners
• Same-sex couples
This exclusion has been criticized as discriminatory and potentially violative of Articles 14 and 21 of the Constitution.
Related Case Law:
• Navtej Singh Johar v. Union of India (2018) – Decriminalized homosexuality
• K.S. Puttaswamy v. Union of India (2017) – Recognized right to privacy
4) Who can become a surrogate mother?
According to the Act, a surrogate mother must:
• Be a close relative of the intending couple
• Be married and have her own child
• Be 25 to 35 years of age
• Act as a surrogate only once
Reference:
