Author: Anushka, student at Babu Jagjivan Ram Institute of Law, BU Campus Jhansi
ABSTRACT
India’s regulatory framework on surrogacy has witnessed a significant overhaul following the introduction of the Surrogacy (Regulation) Act, 2021, and its subsequent revision through the Surrogacy (Regulation) Amendment Rules, 2024. Although this legislative scheme aims to curb commercial exploitation within the surrogacy sector, it simultaneously imposes certain exclusionary provisions that prompt critical constitutional concerns related to equality, reproductive freedom, and the exercise of fundamental rights. The legislation’s exclusion of single parents, same-sex couples, and live-in partners from surrogacy services creates a restrictive eligibility matrix that potentially violates Articles 14, 15, and 21 of the Constitution of India. The 2024 amendments, particularly the reversal that allows donor gamete usage after an initial prohibition, demonstrate the evolving nature of reproductive technology regulation and the legislature’s struggle to balance ethical considerations with practical medical necessities. This article examines the constitutional validity of discriminatory provisions, analyzes the tension between altruistic surrogacy mandates and reproductive rights, and evaluates the emerging jurisprudential framework governing assisted reproductive technologies in India. The analysis encompasses recent judicial developments, enforcement challenges, and the broader implications for reproductive justice in the Indian legal system.
TO THE POINT
The Surrogacy (Regulation) Act, 2021, marks a paradoxical development in India’s reproductive rights framework, ushering in reform while simultaneously reinforcing exclusion. On one hand, it makes significant strides by banning commercial surrogacy and introducing stringent regulatory mechanisms to prevent exploitation. On the other hand, the Act’s narrowly defined eligibility norms impose unjustifiable and constitutionally questionable restrictions on individuals’ reproductive choices and autonomy. The Act’s exclusion of same-sex couples, single men, and unmarried individuals from surrogacy services constitutes discrimination based on marital status, gender, and sexual orientation, directly challenging constitutional guarantees of equality and dignity. The 2024 amendments allowing donor gamete usage after previous prohibition demonstrate legislative uncertainty and the practical difficulties of implementing restrictive reproductive policies. The Supreme Court’s pending examination of these provisions will determine whether India’s surrogacy framework can withstand constitutional scrutiny or requires fundamental restructuring to align with constitutional principles. Legal practitioners must navigate this complex regulatory environment while advocating for inclusive reproductive policies that respect diverse family structures and individual reproductive choices.
THE PROOF
Legislative Evolution and Parliamentary Debates
The Surrogacy (Regulation) Act, 2021, emerged from extensive legislative deliberation aimed at addressing the unregulated commercial surrogacy industry that had positioned India as a global surrogacy destination. Parliamentary debates revealed concerns about the exploitation of economically vulnerable women, the lack of legal protection for intended parents, and the need for comprehensive regulatory oversight. However, the restrictive eligibility criteria appear to reflect traditional family values rather than constitutional principles of equality and non-discrimination.
Constitutional Infirmities and Discriminatory Provisions
By prohibiting unmarried women, single men, individuals in live-in relationships, and same-sex couples from accessing surrogacy, the Act creates discriminatory barriers rooted in marital status, gender identity, and sexual orientation. Such exclusions infringe upon the fundamental right to create a family according to one’s personal choice. Moreover, these restrictions stand in direct conflict with the Supreme Court’s evolving jurisprudence that affirms reproductive autonomy, recognizes diverse family structures, and upholds the rights of LGBTQ+ individuals in several landmark decisions.
Regulatory Amendments and Policy Reversals
The 2024 Amendment to Surrogacy (Regulation) Rules, 2022 allows surrogacy using donor gametes, with benefits available if the District Medical Board certifies that either intending spouse suffers from a medical condition necessitating donor usage. This reversal from the previous prohibition demonstrates the practical challenges of implementing restrictive reproductive policies and the influence of medical necessity on legislative decision-making.
Enforcement Mechanisms and Administrative Framework
The Act establishes a comprehensive administrative framework, including National and State Surrogacy Boards, registration requirements for surrogacy clinics, and detailed procedures for surrogacy arrangements. However, the implementation challenges, particularly regarding eligibility verification and monitoring altruistic arrangements, reveal gaps between legislative intent and practical enforcement capabilities.
Commercial Surrogacy Prohibition and Altruistic Framework
The Act prohibits commercial surrogacy, allowing only altruistic surrogacy while forbidding monetary transactions except for medical expenses and insurance coverage for surrogate mothers. This fundamental shift from commercial to altruistic surrogacy raises questions about the availability of surrogate mothers and the practical viability of the altruistic model in the Indian social context.
CASE LAWS
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
Facts: Nine-judge constitutional bench decision recognizing privacy as a fundamental right under Articles 14, 19, and 21 of the Constitution.
Relevance: The judgment’s recognition of privacy as encompassing reproductive autonomy and personal choice provides a constitutional foundation for challenging discriminatory surrogacy provisions. The Court’s emphasis on individual dignity and independence directly supports arguments against restrictive eligibility criteria.
Application: The privacy framework established in Puttaswamy can be invoked to challenge the Act’s intrusion into reproductive choices and family formation decisions, particularly regarding single parents and same-sex couples.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
Facts: Five-judge constitutional bench decision decriminalizing homosexuality and recognizing LGBTQ+ rights under constitutional equality and dignity provisions.
Holding: The Court recognized sexual orientation as a natural variation of human sexuality and emphasized that discrimination based on sexual orientation violates constitutional equality guarantees.
Significance: This landmark judgment directly challenges the Surrogacy Act’s exclusion of same-sex couples, establishing that discrimination based on sexual orientation is constitutionally impermissible and that LGBTQ+ individuals possess equal reproductive rights.
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368
Facts: The Supreme Court, in Shafin Jahan v. Asokan K.M. (2018), affirmed that the right to choose one’s life partner is an intrinsic part of individual autonomy and personal liberty, protected under Article 21 of the Constitution.
Relevance: The judgment’s emphasis on individual choice in intimate relationships supports arguments against the surrogacy Act’s restriction to married couples, recognizing diverse family structures and relationship choices.
Application: The Court’s protection of individual autonomy in personal relationships provides precedential support for challenging marital status-based discrimination in surrogacy access.
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518
Facts: Supreme Court decision addressing citizenship and legal status issues arising from commercial surrogacy arrangements involving foreign intended parents.
Holding: The Court recognized the need for comprehensive surrogacy regulation while emphasizing the welfare of children born through surrogacy arrangements.
Significance: This early surrogacy case highlighted regulatory gaps and established principles regarding child welfare that influenced subsequent legislative development, though it preceded current constitutional jurisprudence on reproductive rights.
LEGAL ANALYSIS AND IMPLICATIONS
Constitutional Validity of Discriminatory Provisions
The Act’s eligibility restrictions raise serious constitutional questions under Articles 14, 15, and 21 of the Constitution. The exclusion of single parents, same-sex couples, and unmarried individuals lacks a rational nexus to the legislative objective of preventing commercial exploitation. These provisions appear to reflect moral judgments about family structures rather than evidence-based policy considerations, potentially violating the constitutional requirement of reasonable classification.
Reproductive Autonomy and Fundamental Rights
The Supreme Court’s evolving jurisprudence on reproductive rights, privacy, and personal autonomy provides a strong constitutional foundation for challenging restrictive surrogacy provisions. The intersection of reproductive rights with equality guarantees creates compelling arguments that the current framework violates multiple constitutional provisions simultaneously.
International Human Rights Law and Comparative Analysis
India’s restrictive approach contrasts with more liberal surrogacy frameworks in other jurisdictions that recognize diverse family structures. International human rights law, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, supports arguments for inclusive reproductive policies that respect individual autonomy and non-discrimination principles.
REFORM RECOMMENDATIONS AND POLICY ALTERNATIVES
Inclusive Eligibility Framework
Legislative reform should establish inclusive eligibility criteria based on the capacity to provide care rather than marital status or sexual orientation. Evidence-based eligibility standards focusing on psychological, financial, and social readiness for parenthood would better serve the legislation’s protective objectives while respecting constitutional principles.
Enhanced Safeguards for Surrogate Mothers
Strengthening protections for surrogate mothers through comprehensive counseling requirements, independent legal representation, and enhanced medical care provisions would address exploitation concerns without resorting to discriminatory eligibility restrictions.
CONCLUSION
India’s surrogacy regulatory framework represents a critical juncture in the evolution of reproductive rights jurisprudence, embodying both progressive reform impulses and regressive discriminatory policies. The Surrogacy (Regulation) Act, 2021, successfully addresses commercial exploitation concerns while simultaneously creating constitutional violations through discriminatory eligibility restrictions. The tension between protective regulation and reproductive autonomy demands careful constitutional scrutiny and potential legislative reform.
The constitutional infirmities in the current framework are evident and substantial. The exclusion of single parents, same-sex couples, and unmarried individuals lacks a rational basis and violates fundamental equality guarantees. These provisions reflect traditional family value judgments rather than evidence-based policy considerations, creating arbitrary classifications that fail constitutional scrutiny under established equality jurisprudence.
The Supreme Court’s pending examination of these issues presents an opportunity to establish coherent constitutional principles governing reproductive rights and assisted reproductive technologies. The Court’s decision will determine whether India adopts an inclusive approach that respects diverse family structures and individual reproductive autonomy or maintains restrictive policies that discriminate against vulnerable groups.
Legal practitioners, policymakers, and civil society organizations must collaborate to advocate for inclusive surrogacy policies that reflect constitutional principles of equality, dignity, and reproductive autonomy. The stakes extend beyond surrogacy regulation to encompass broader questions of reproductive justice, family diversity, and constitutional governance in contemporary India.
FAQS
Q1: What are the main constitutional challenges to India’s Surrogacy Act 2021?
A: The primary constitutional challenges focus on discriminatory eligibility criteria that exclude single parents, same-sex couples, and unmarried individuals from surrogacy services. These provisions potentially violate Articles 14 (equality), 15 (non-discrimination), and 21 (life and personal liberty) of the Constitution, lacking a rational nexus to the legislative objective of preventing commercial exploitation.
Q2: How will the 2024 Amendment change the Surrogacy Act?
A: The 2024 amendments significantly reversed previous restrictions by allowing donor gamete usage in surrogacy arrangements when certified by District Medical Boards as medically necessary. This represents a shift from the initial blanket prohibition and demonstrates the legislature’s recognition of practical medical requirements in reproductive technology.
Q3: Can same-sex couples legally access surrogacy services in India?
A: No, the current Surrogacy Act explicitly excludes same-sex couples from accessing surrogacy services, despite the Supreme Court’s recognition of LGBTQ+ rights in the Navtej Singh Johar case. This creates a discriminatory framework that contradicts constitutional equality principles and may face successful constitutional challenges.
Q4: What is the difference between commercial and altruistic surrogacy under the Act?
A: The Act prohibits commercial surrogacy entirely, allowing only altruistic surrogacy where surrogate mothers cannot receive monetary compensation beyond medical expenses and insurance coverage. This represents a fundamental shift from India’s previous commercial surrogacy industry and aims to prevent exploitation of economically vulnerable women.
Q5: How does the Act affect single women seeking surrogacy?
A: Single women face discrimination under the Act, which restricts surrogacy access to married couples only. This creates gender-based discrimination that potentially violates constitutional equality guarantees and reproductive autonomy rights, particularly impacting women who cannot conceive naturally and lack male partners.
Q6: Can foreign nationals access surrogacy services in India under the new law?
A: The Act significantly restricts foreign access to Indian surrogacy services, primarily limiting arrangements to Indian citizens and Overseas Citizens of India. This represents a major shift from India’s previous position as a global surrogacy destination and reflects concerns about cross-border legal complications.
