Author: Sreya Shah, a student at Woxsen University
To the point:
Surrogacy is a boon to people who cannot conceive naturally or have medical complications. Surrogacy has two types, commercial and altruistic. In India, the Surrogacy Regulation Act, 2021 permits altruistic surrogacy, whereas prohibiting the other. The law restricts surrogacy access primarily to Indian heterosexual married couples, with a narrow exception carved out for divorced and widowed women. Much of the criticism surrounding the Act stems from its blanket ban on commercial surrogacy and the strict limitations placed on who can participate in the process. By excluding single individuals, LGBTQ+ couples, and banning paid surrogacy, the Act is said to be reinforcing patriarchal norms under the guise of protection. This article examines whether the law genuinely empowers women or restricts their autonomy further.
Abstract:
The Surrogacy Act, 2021, was introduced to eradicate mal-surrogacy practices and address ethical concerns surrounding commercial surrogacy in India. While it claims to protect vulnerable women from being exploited, the law has sparked sharp criticism for reinforcing patriarchal control over women’s reproductive choices. Critics claim that the law is not in favour of women but of the patriarchal society that wants to control women’s body choices. They also argue that this Act infringes the fundamental rights of several individuals who are willing to have children through surrogacy. This article critically examines this act through a feminist lens, aiming to point out its implications and disadvantages.
Legal Jargon:
The Surrogacy Act, 2021, defines and regulates the practice of surrogacy in India. It distinguishes between altruistic and commercial surrogacy. Altruistic surrogacy involves the selfless practice of surrogacy where no monetary compensation is provided to the mother carrying the child, apart from the medical expenses incurred. On the other hand, commercial surrogacy involves compensating the woman carrying the child in monetary terms. This act bans the practice of commercial surrogacy in India, while authorising altruistic surrogacy.
Even in the case of altruistic surrogacy, only a legally married couple and a widowed or divorced woman have access to surrogacy. Further, the law bars single people and LGBTQ+ individuals from opting for surrogacy, reinforcing a narrow and traditional view of who qualifies as a legitimate family. This raises constitutional concerns under Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life and Personal Liberty), particularly in the context of reproductive rights, which the Supreme Court has recognized as part of personal liberty.
Additionally, a woman can only become a surrogate if she is married, between the ages of 25 and 35, and has previously given birth to at least one child; furthermore, she is allowed to be a surrogate only once in her life. Further, the intending couple must have been married for at least five years and prove medical infertility, and they must not have any biological, adopted, or surrogate children. These criteria impose arbitrary restrictions and reflect gendered assumptions about who qualifies to be a surrogate.
Further, the Act requires clearance from a National and State Surrogacy Board and involves complicated procedures with heavy supervision. Though intended to prevent exploitation, this framework can result in the overregulation of women’s bodies and can sometimes lead to underground ill practices.
The proof:
Surrogacy was India was once known as the surrogacy capital of the world, with a booming industry valued at over ₹2,000 crore by the early 2010s. Poor women from rural areas with low income turned towards surrogacy for the betterment of their financial conditions. But, this often led to the exploitation of educated women by the foreign or NRI couples that either abandoned their surrogate children or flew away without compensating the surrogate mother. To protect women from such exploitation, the Surrogacy Regulation Act, 2021, was introduced. As mentioned earlier, the act prohibited the practice of commercial surrogacy and restricted NRIs or foreigners from practicing surrogacy in India.
Although this Act was reinforced to safeguard women against such malpractices, it somehow led to unnecessary infringement of women’s bodily autonomy. It does not permit paid surrogacies, it prohibits unmarried, childless women from becoming surrogate mothers, and restricts single women (not widowed or divorced) from having surrogate children. Apart from this, it also restricts LGBTQ+ couples and other single individuals from having surrogate children.
The critics state that this Act is a clear violation of the bodily autonomy of women and an infringement of the fundamental rights of the other excluded individuals. It also raises serious concerns about discrimination based on marital status, gender identity, and sexual orientation, limiting the reproductive rights of single individuals and LGBTQ+ persons.
Several international human rights bodies and feminist scholars have criticized such legislation for reinforcing patriarchal control over women’s bodies, where protection is offered at the cost of personal choice. Additionally, the Act imposes a high degree of bureaucratic scrutiny, making the process legally and emotionally exhausting for all parties involved.
The irony is that the law was made to protect women from being exploited, while the law itself is rooted in the patriarchal norms that withhold the rights and personal choices of women.
Case Laws
1. Baby Manji Yamada v. Union of India (2008)
This landmark case involved a Japanese baby born through surrogacy in India. The Supreme Court recognized surrogacy arrangements and directed that the baby be granted travel permissions, but the case also revealed India’s lack of legal framework for regulating cross-border surrogacy.
2. Jan Balaz v. Union of India (2009)
In this case, the Gujarat High Court addressed the citizenship of children born to a German couple via Indian surrogate mothers. It brought attention to the lack of legal clarity on determining the nationality and legal parentage of children born through surrogacy.
Conclusion
Surrogacy had long existed in India without specific legal boundaries. The 2021 Act was introduced to bring structure and state oversight to this previously informal practice. They successfully implemented the law despite its drawbacks. The Act was meant to protect women from being exploited; instead, it traded protection for personal choice and bodily autonomy. Apart from this, it also violates the fundamental rights of individuals from the LGBTQ+ community and single individuals. While the intent may be ethical, the impact is exclusionary. A truly progressive law must balance regulation with autonomy, compassion with inclusion. As the reproductive technologies evolve, our laws must evolve with them, breaking the patriarchal boundaries, ensuring fairness to all.
FAQS
1. What is the Surrogacy (Regulation) Act, 2021?
It is a law passed by the Indian Parliament that bans commercial surrogacy and permits only altruistic surrogacy for Indian married heterosexual couples, with strict eligibility criteria for both intending parents and surrogates.
2. How is altruistic surrogacy different from commercial surrogacy?
Commercial surrogacy involves financial compensation beyond medical expenses, whereas altruistic surrogacy allows only reimbursement for medical and insurance costs, with no other monetary exchange.
3. Who is allowed to be a surrogate under the Act?
Only a married Indian woman aged 25–35, who has at least one biological child of her own, is eligible. She must also be a close relative of the intending couple.
4. Why is the Act considered controversial from a feminist perspective?
The Act restricts a woman’s right to choose whether to become a surrogate for compensation, and excludes single individuals, LGBTQ+ persons, and live-in partners from commissioning surrogacy — reinforcing patriarchal, heteronormative definitions of family and control over women’s reproductive choices.
5. Can NRIs and foreign nationals practice surrogacy in India?
No. The Act prohibits surrogacy for foreign nationals, NRIs, and even Overseas Citizens of India (OCIs), aiming to prevent India from becoming a global hub for surrogacy tourism.
