Author: Amritava Pramanik, Department of Law, University of Calcutta
Linkedin Profile: https://www.linkedin.com/in/03amritava-pramanik-b46a20317
To the Point
India has evolved from the epicentre of commercial surrogacy to a nation that has some of the most draconian surrogacy laws in the world. The new legislation, both the Surrogacy (Regulation) Act and Assisted Reproductive Technology (Regulation) Act 2021, has taken care of focusing on altruistic surrogacy only, subsuming commercial considerations. This shift is intended to protect the rights and dignity of the surrogate mothers, while at the same time protecting them from exploitation. Yet the laws also stir debates of availability, personal liberty and the spectrum that regulation bears on reproductive autonomy. This article looks at Indian Surrogacy laws, the relevant constitutional guarantees and ethical perils that plague the exercise of surrogacy.
Abstract
Because of the Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology (Regulation) Act, 2021, surrogacy in India has changed from an internationally uncontrolled commercial practice to a heavily regulated altruistic industry. These legislations were meant to address the ethics and exploitation concerns related to surrogacy about managing surrogate mothers, and guiding both intended parents who may either be gestational or non-gestational, along with children born through these surrogacy arrangements. This article delves into various forms of surrogacy recognised in India, the State backdrops, historical antecedents that had precipitated legislative reforms and some of the salient provisions as well as the constitutional dimensions of the new regulatory scheme. Through thematic analysis of Supreme Court decisions and ethical questions, this article criticises the present architecture of surrogacy in India, advocating that more needs to be done on the legal and social front for requisite protection as well as protection of fertility rights.
Legal Jargon
The legal framework governing surrogacy in India is an area governed by only two statutory laws:
Surrogacy (Regulation) Act, 2021: An Act that prohibits commercial surrogacy and is permissible only for altruistic surrogacy on very few grounds.
Key provisions include:
Section 4(iii) (b): Restricts eligibility to Indian married couples unable to conceive for at least 5 years.
Sections 2 & 6: Define surrogacy and mandate informed written consent.
Section 7: Bans the sale or selection of embryos based on sex.
Section 39: Provides for up to 5 years imprisonment and ₹10 lakh fine for violations.
The Assisted Reproductive Technology
(Regulation) Act, 2021: establishes guidelines and regulations for clinics and procedures related to assist reproductive technology.
Sections 3 & 13: Set standards for registration, consent, and operations.
Sections 21 & 26: Ban embryo or gamete trading and sex-selective practices.
The laws are firmly based in Article 21 of the Indian Constitution, ensuring the right to life and personal freedom, encompassing reproductive autonomy. Judicial advancements have bolstered reproductive rights as a crucial element of the right to privacy and dignity.
The Proof
India became ‘the capital of reproductive tourism’ due to its unreined surrogacy. But exploitation concerns, especially of economically vulnerable women.
Before 2021: Foreigners frequently accessed surrogacy services; surrogate mothers often lacked legal protection.
After 2021, India adopted a rights-based, ethical framework by banning commercial surrogacy and restricting the practice to altruistic models among close relatives.
Several landmark cases shaped this transition:
Baby Manjhi Yamada v. Union of India (2008): Concerns have been raised regarding parentage and citizenship in cross-border surrogacy arrangements.
Jan Balaz v. Anand Municipality (2008): Highlighted legal gaps in nationality for children born through surrogacy.
Suchita Srivastava v. Chandigarh Administration (2009): Validation of reproductive choices as a part of non-public liberty under Article 21.
Justice K.S. Puttaswamy v. Union of India (2018):
In this case, it was declared that the right to privacy fell under the Fundamental right, also safeguards further medical and reproductive decisions.
Together, these cases and statutes create a new but still-evolving legal landscape for surrogacy in India.
Introduction
Surrogacy is one of the highly engaging options for many kinds of individuals or couples who can not have a baby naturally. This article digs into the Indian surrogacy terrain, the types, evolution, legal dynamics, facilitation constraints, and issues in India’s surrogates’ future directions.
When a woman is surrogated, she holds and gives birth to a baby for another person or couple who want to be parents. The idea gained significant attention in India in recent years, leading to the formulation of new laws to ensure its proper regulation. Infertility, and sometimes other medical problems that disqualify one from conceiving naturally, but there is a way to become a parent. India was a surrogacy hotspot before 2021. But there was an issue about the exploitation of women, the catalyst for enormous law changes. Surrogacy in India is well-regulated by two major legislations passed in 2021. These two laws safeguard the surrogate mothers, the intended parents, and most importantly, the individuals who are born as a result of surrogacy.
Types of Surrogacy
There are two main kinds of surrogacy, determined by the method used to create the baby.
Gestational Surrogacy (Full Surrogacy)
In this scenario, the surrogate mother will bear an embryo formed from the eggs and sperm of the intended parents or donors. This implies no genetic parentage, the surrogate who carries the baby gives birth, and it is the most common form of surrogacy done in everywhere.
Traditional Surrogacy (Partial Surrogacy)
This standard method involves the surrogate woman lending her egg. Therefore, the child is half genetic material from the pregnant woman, and also the sperm that impregnated the egg are from the intended father or sperm donor, who will go through the process.
According to financial arrangement, surrogacy can also be classified as:
Altruistic Surrogacy
The surrogate mother here gets no additional remuneration besides her medical bills and insurance. Currently, in India, altruistic surrogacy is the sole form of surrogacy acknowledged by law.
Commercial Surrogacy
In this type, the surrogate mother had been paid some extra amount without the medical and insurance bills, but this surrogacy is now banned in India according to the 2021 laws.
Historical Background of Surrogacy Laws in India
India was referred to as the surrogacy hub prior to 2021. The first test-tube baby in India, also known as Durga or Kanupriya, was born in Kolkata on October 3rd, 1978. The success paved the way for assisted reproduction technologies in India. After several years, surrogacy was not a regulated subject in India, no laws existed, so it started as the world’s “reproductive tourism” capital, seeking surrogacy deals, frequently much more affordable than with individuals at home in India. The lack of regulation led to more protests about how women from economically deprived backgrounds are almost always incentivised to be surrogates over people. In 2015, the activist and high court lawyer Jayshree Wad filed a suit in the Supreme Court about these matters. After taking into account the above issues, the Indian government banned surrogacy for foreigners in 2015 and brought in the Surrogacy (Regulation) Act 2021.
Legal Frameworks in India
Following several years of revisions, the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, were finally passed and came into force on December 25, 2021.
Key Provisions of these Acts
Altruistic surrogacy is controlled only in India by the Surrogacy (Regulation) Act 2021. When a woman goes for surrogacy with expenses other than medical expenses are involved. The Act is an outright ban on commercial surrogacy, as it refers to women carrying babies for someone else. Surrogacy under section 2, when a woman has a child on behalf of else couple. Section 4 Surrogacy can be done only when the Indian married couple cannot have a biological child and they have been married for at least five years, as per Section 4 (iii) (b) of the Surrogacy (Regulation) Act, 2021 surrogate must be a near relative, married and with at least one child. Clause 8, the couple is entitled to purchase life insurance for the surrogate. Sex selection for a child is prohibited by the law. Since the centre is not adhering to the rules, up to 5 years in jail and ₹10 lakh under Section 39.
The Assisted Reproductive Technology
(Regulation) Act, 2021, on the one hand and regulates all clinics, banks through this act under Section 3, while their function are specified in Section 13, along with informed consent and record keeping, etc. Section 21 No Human Embryos and Gametes for sale or trade, this includes screening of donors and banning sex selection under Section 26, and violation is punishable under Chapter V of this act.
Mainly Constitutional and legal dimensions of surrogacy in India are encircled under the basic Right to Life, Liberty or personal liberty along with Privacy mentioned in Article 21 of the constitution, which is identified as reproductive autonomy by courts, right to enable people to decide on family, reproduction and surrogacy as well if they want.
Section 4 (ii) Surrogacy (Regulation) Act, 2021, effectively governs surrogacy through allowing only altruistic surrogacy and outlawing commercial surrogacy to avoid exploitation.
Sections 6 and 7. It includes determining prerequisites for intended parents and surrogate mothers, to give them the privacy to exercise all these rights. According to the Act, Informed Written Consent from surrogate mothers, Section 6 and ban the surrogate-born chicks under Section 7. On the other hand, the Assisted Reproductive Technology Regulation Act, 2021 deals with the regulation of clinics and procedures, highlighting due process and confidentiality sections 15, 21, and 22. These laws find a middle path between the inviolable right to an unencumbered family on the one hand and reflect constitutional notions of equality, dignity and privacy for children.
Important Case Laws on Surrogacy in India
Baby Manjhi Yamada v. Union of India (2008)
The case involved checking on commercial surrogacy and citizenship, and parentage Rights of surreptitiously conceived and brought forth by foreign parents. Through the provisions of Article 32 of the Constitution, the apex court pointed out the lack of laws on surrogacy and the necessity for legal clarity on parentage and citizenship.
Jan Balaz v. Anand Municipality (2008)
Here, the Gujarat High Court introduced the question concerning citizenship in the case of a bi-national couple entering India for genuine surrogacy. The case revolved around the breaches of Section 3 and 4 of the Citizenship Act, 1955, and was centred on stateless children protesting within the void of Indian Nationality by international surrogacy schemes.
Suchita Srivastava v. Chandigarh Administration (2009)
Om another writ in the Supreme Court under Article 21 of the Constitution, this time it was ruled on a womanʼs fundamental right to make reproductive choices and carry her pregnancy to term or not. It has laid down a precedent to consider reproductive autonomy as personal liberty, which is in support of adopting surrogacy rights.
Justice K.S. Puttaswamy v. Union of India (2018)
The Supreme Court construed Article 21 to enshrine privacy as a basic right. This judgment draft surrogacy laws are based on the principle of confidentiality in reproductive surgery and caution against mandatory disclosure requirements, indirectly influencing Sections on medical privacy in the regulation of surrogacy.
Justice, Fairness, and Social Impact
Surrogacy involves several ethical and social considerations like altruistic surrogacy are the anguish and pressure on women from their families to surrogate for relatives. Commercial surrogacy turns motherhood into a commercial commodity and reduces women to nothing but reproductive machines. In India, the perception of surrogacy varies as per different religions and cultures. As Children raised in surrogacy they will be asked and questioned about their identity. They are meant to counter such concerns by outlawing commercial surrogacy and legislating restrictions on who can be involved in surrogacy agreements.
Conclusion
Indian surrogacy has come a long way from an unregulated practice to a confined reproductive option as per the 2021 laws. The Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act are a great way to move towards more ethical reproductive technology surrogacy so that the rights of everyone parties are protected.
That being said, these new laws have addressed most of the past issues concerning exploitation. Although undoubtedly, implementation challenges exist and access will be an ever-larger problem, rights and interests. India’s surrogacy laws may need more refinement, even though both the society and surrogate mothers have access to surrogacy services, if they need them, the right way, exploitation will be prevented, and the mothers of the children born this way are taken care of via these channels. Balancing this between communities needs to be an ongoing dialogue in medicine, healthcare or giving their children a name and identity. And in the end, an acceptable system will balance out human dignity against vulnerable people and the intrinsic worth of establishing a family.
FAQS
1. What is surrogacy in India? How is surrogacy classified?
Surrogacy involves a woman carrying a pregnancy for an individual or couple and giving birth to a child on their behalf. Commercial surrogacy is outlawed, and in India, only altruistic surrogacy (where reimbursements are offered beyond a few costs associated directly with pregnancy to the carrier).
2. Who can go for surrogacy in India?
Surrogacy is available to Indian married couples who have been medically proven to be infertile for a minimum period of five years, and the surrogate should be a biological relative with one child of her own.
3. What are the Laws of surrogacy in India?
The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act,2021, lay down who can perform the surrogate work and when. ART clinics and procedures are subject to regulation under the Assisted Reproductive Technology (Regulation) Act, 2021.
4. Why commercial surrogacy was banned in India?
Repeated push back of concerns over putting impoverished women into the exploitation of poor people and ethical problems led India to kill commercial surrogacy, the only way to economise dignity in dematerialised reproduction.
5. In what manner or context does the law of the Constitution apply in the case of surrogacy?
India guarantees reproductive autonomy by upholding personal liberty and privacy as per Article 21 of the Indian Constitution. Courts have interpreted the provision to mean that persons are entitled to make decisions pertaining to surrogacy and family planning.
References
Dr. Nidhi Sharma, ‘Types of Surrogacy in India’ Fertility World https://fertilityworld.in/blog/types-of-surrogacy-in-india/#
Animesh Nagvanshi, ‘Surrogacy in India-A long Journey for the Nation’ Times of India https://timesofindia.indiatimes.com/readersblog/maternitybenefitactboonandbaneforthenation/surrogacy-in-india-a-long-journey-for-the-nation-51172/
The Surrogacy (Regulation) Act, 2021.
The Assisted Reproductive Technology
(Regulation) Act, 2021.
The Constitution of India, 1950.
The Citizenship Act, 1955.
De Facto Law Content Team, ‘Surrogacy in India: Law and Issues’ De Facto Law https://www.defactolaw.in/post/surrogacy-in-india-law-and-issues#:~:text=Right%20to%20Life%20and%20Personal%20Liberty%20(Article%2021)%3A&text=In%20the%20context%20of%20surrogacy,means%20to%20have%20a%20child
Baby Manji Yamada v. Union of India & Anr [2008] AIR 2009 SUPREME COURT 84 https://indiankanoon.org/doc/854968/
JAN BALAZ v. ANAND MUNICIPALITY & 6 [2008] AIR 2010 Guj 21 https://www.casemine.com/judgement/in/56b48efa607dba348fff6a16
Suchita Srivastava & Anr v. Chandigarh Administration [2009] AIR 2010 SUPREME COURT 235 https://indiankanoon.org/doc/1500783/
JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER v. UNION OF INDIA AND OTHERS [2018] AIR 2018 SC (SUPP) 1841 https://indiankanoon.org/doc/127517806/
