Author: Disha Parmar, Avantika University, Ujjain
To the Point
Surrogacy, which was not much regulated in India before, has now undergone a major legal change. It was important to strike a balance between the dignity and protection of surrogate mothers and the reproductive rights of intended parents. While surrogacy emerged as a hope for childless couples, it also faced exploitation, commercialization of the human body and ethical problems. India has shifted from commercial to altruistic surrogacy model with the Indian Surrogacy (Regulation) Act, 2021. In this article, we will see how India is trying to strike a balance between ethics, individual rights and regulation.
Abstract
Surrogacy in India has gone from being a booming commercial enterprise to a legally restricted altruistic practice. This change came when issues such as exploitation of poor women, legal disputes over parentage, and commodification of childbirth came to the fore. The aim of the Surrogacy (Regulation) Act, 2021 is to protect surrogate mothers and preserve the parenthood rights of infertile Indian couples. But critics say the law is too restrictive and does not consider today’s modern reproductive realities and diverse family structures. This article analyses the law’s framework, ethical issues, and implementation challenges.
Use of Legal Jargon
The Surrogacy (Regulation) Act, 2021 states that surrogacy is a practice in which a woman produces a child for a couple and hands over the child to them. The Act differentiates between altruistic and commercial surrogacy. Altruistic surrogacy is allowed in which no money is given except medical expenses and insurance.
Commercial surrogacy, in which extra payment is made, is clearly prohibited.
The Act sets some strict eligibility criteria. The intended couple should be Indian citizens, they should have been married for at least five years and they should be proven to be infertile. The surrogate mother should be a close relative, married, between 25–35 years of age and should have a biological child. A woman can surrogate only once.
Apart from this, written informed consent, insurance cover and registration of ART clinics are also necessary to make surrogacy practice ethical. If anyone violates, criminal penalties can be imposed, such as fines and imprisonment.
The Proof
Earlier in India, the surrogacy industry was not regulated, due to which foreign couples were attracted and India became a global hub. But due to exploitation of poor women, abandonment of children and legal issues of cross-border surrogacy, judiciary and legislature intervened.
In 2015, the government banned surrogacy for foreigners. The Act that came in 2021 put this process into a legal framework. Now:
National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) oversee the implementation.
Registration of all surrogacy clinics is compulsory.
Obtaining certificate of infertility proof and eligibility certificate is mandatory for the intending couple and the surrogate.
But some problems still remain. The condition of close relatives is not practical for everyone, especially for nuclear families. And single parents, live-in couples, LGBTQ+ couples and foreigners are excluded, which goes against Article 14 (equality) and Article 21 (personal liberty).
Historical Background of Surrogacy in India
India became a surrogacy destination in the early 2000s, due to affordable healthcare and less regulation. Cities like Anand, Gujarat became the epicenter of surrogacy. Foreign nationals were coming here and getting surrogacy done. The value of the industry went up to $2 billion. But it also had a negative side: financially weak women were becoming victims of exploitation, they were being involved without informed consent. Due to the absence of any legal framework, surrogate mothers were abandoned many times, children remained stateless and parentage disputes also occurred. Looking at all this, the government decided to make a law.
Comparative Legal Framework: Surrogacy in Other Countries
India’s surrogacy approach is quite conservative. Regulated commercial surrogacy is allowed in Ukraine, Russia, and Georgia. Countries like France, Germany, and Italy completely ban surrogacy. Altruistic surrogacy is allowed in the UK and Canada, but the eligibility there is more inclusive. For example, in Canada, single individuals and same-sex couples can also opt for surrogacy. Because of the strict law in India, people criticize that it is regressive and forces the intended parents to opt for surrogacy abroad.
Case Laws
Baby Manji Yamada v. Union of India (2008)-
A Japanese couple had a child through an Indian surrogate, but they got divorced. The child was in legal limbo. The Supreme Court intervened and allowed the child to travel and care for himself. This case highlighted the legal gaps in cross-border surrogacy and focused on the need for legislation.
Jan Balaz v. Anand Municipality (2009)-
A German couple had a child through an Indian surrogate, but Germany did not recognize it. The child remained stateless for some months. The Gujarat High Court granted the child Indian citizenship on the basis of jus soli (by birth). This case highlights the complex legal issues of nationality, citizenship and parentage.
K. Kalaiselvi v. Chennai Port Trust (2013)-
A woman who had a child through surrogacy was denied maternity leave. The Madras High Court said that motherhood is not defined by biological delivery alone. This judgment legally accepted the rights of surrogate mothers and bonding of their children.
Criticisms and Challenges of the Current Law
The intentions of the Surrogacy (Regulation) Act, 2021 are good but there are some flaws too. The requirement of close relatives is not practical for nuclear families. Excluding LGBTQ+ individuals, single persons, live-in couples and foreigners is considered against Article 14 and 21. The law also seems quite paternalistic, where it is assumed that women cannot make their own decisions. This ban could push commercial surrogacy underground, where there would be no legal protection.
Need for Reforms and The Way Forward
If we want to respect reproductive justice and autonomy, then reforms in the law are necessary:
Altruistic surrogacy should be allowed for single persons, LGBTQ+ community and live-in couples.
Proper counselling and consent system should be created by removing the condition of close relatives.
A regulated compensated surrogacy system should be created that can prevent exploitation.
Long-term health care and legal rights should be secured for surrogate mothers.
The law can be made more inclusive through public awareness, judicial activism and parliamentary debates.
Conclusion
India’s journey of surrogacy regulation is a balancing act: between protection of surrogate women and reproductive rights of couples. The Surrogacy (Regulation) Act, 2021 has provided legal clarity and ethical safeguards, but its rigid structure and exclusionary clauses make it controversial. The law is also being called discriminatory because it excludes LGBTQ+ individuals, single parents and foreigners.
The law will have to evolve according to today’s modern family structures and reproductive needs. A balance has to be struck – between control and compassion, regulation and rights. Until this happens, surrogacy law will remain both a hopeful possibility and a topic of controversial debate in India.
FAQS
What is surrogacy according to Indian law?
Surrogacy is a process in which a woman gives birth to a child for a couple and then hands over the child to the couple. Only altruistic surrogacy is legal in India.
Who can opt for surrogacy in India?
Only married Indian heterosexual couples who have been married for 5 years and are infertile. The surrogate mother should be their close relative.
Is commercial surrogacy allowed in India?
No. Under the Surrogacy (Regulation) Act, 2021, commercial surrogacy is completely banned. Only medical expenses and insurance can be paid.
Can single parents or LGBTQ+ couples avail surrogacy?
No. The current law excludes single individuals, live-in partners and LGBTQ+ couples from surrogacy.
What is the punishment if someone violates the law?
Running unregistered clinics or advertising surrogacy, and getting commercial surrogacy done – all these can attract up to 10 years in jail and a fine of up to ₹10 lakh.
