Regulating Wombs: A Socio – Legal Critique of the Surrogacy (Regulation) Act 2021

ABSTRACT

Between miracle and manipulation, there lies a thin legal line, when womb becomes gateways of hope and shadows of exploitation, the Surrogacy (Regulation) Act, 2021 becomes an unseen guardian.

The Surrogacy (Regulation) Act, 2021 marked a landmark shift towards reproductive governance in India. T prohibited commercial surrogacy and permitting humane surrogacy under strict rules. The act was enforced to prevent exploitation and uses women’s body as a commodity. Furthermore, the law seeks balance ethical concerns with reproductive needs. The article critically examines the objective and provisions, Comparative analysis, Recent Amendment, Feminist critique, and Regulatory framework. Also, it highlights the tension between protection and paternalism in India.

Keywords: Surrogacy, Reproductive governance, Gender justice, Feminist critique, Socio – Legal analysis, Commercial Surrogacy, Paternalism

INTRODUCTION

Surrogacy has transformed the Assisted Reproductive Technologies (ARTs) and brings hope to the individuals and those couples who are unable to conceive. Long years back, India served as a global home for commercial surrogacy because of the low costs, Medical expertise and minor regulation.[1] However, the reports of manipulation, baby – selling and reproductive tourism calls for strict regulation.[2]

Then, the Surrogacy (Regulation) Act, 2021 is the sum of all these concerns. The act bans the commercial surrogacy and allows only humane arrangements for those categories who are intended to be parents.[3] The legislative intent is clear and protective but the act has a prolonged controversy over being more restrictive and moralistic.[4]

Majorly, there are three main arguments of the act are:

1. The constitutional concerns related to privacy and reproductive autonomy.
2. The Gender paternalism/ restricts the rights of women in the name of protecting them.
3. The marginalized single people, LGBTQ+, and Live – in Partners are excluded.

HISTORY OF SURROGACY (REGULATION) ACT IN INDIA

In the late 2000s, the Surrogacy industry expanded rapidly. The Indian Council of Medical Research issued non – binding ART guidelines in 2005, which have permitted commercial surrogacy.[5]  The medical clinics expanded and that attracted foreign clients.[6]  The turning point came up with the famous case of Baby Manji Yamada v. Union of India, which raised the issue of cross – border surrogacy and created citizenship issues.[7] This controversy highlighted regulatory gaps and ethical issues. Therefore, Parliament framed commercial surrogacy as exploitative.[8] Many bills were proposed during 2016 and 2019, before the 2021 act was passed.[9]

OBJECTIVES OF THE ACT

The Surrogacy (Regulation) Act, 2021 has prohibited commercial surrogacy. The payment beyond medical expenses and insurance is illegal.[10] Violation of these rules can attract criminal penalties.[11] Surrogacy must be humane in nature and there must be no financial compensation.[12] The surrogate mother must be married women of age 25 – 35 with at least one child.[13] Te eligibility of intended parents must be:[14]

1. India heterosexual married couples.
2. Married for 5 years.
3. Proven Infertility.
4. Widow or Divorcees (in limited cases).

Furthermore, the act established institutional mechanism at National and State surrogacy Boards to regulate the clinics.[15] All surrogacy clinics must be registered. The child born, through surrogacy is deemed as the biological child of the couple and full legal rights are to be granted. The activities like Sex solution, Sale and purchase of Embryos, Abandonment of child and exploitation of surrogate mothers are strictly prohibited. Surrogacy agreements are not legally enforceable.

COMPARATIVE ANALYSIS: INDIA AND SELECTIVE JURISDICTIONS

1. United Kingdom: The Surrogacy Arrangements Act, 1985,[16] prohibits commercial surrogacy but also, allows reasonable compensation for surrogate expenses.[17] The regulation focuses on welfare rather than prohibition.[18]

Case Law: R (on the Application of TT) v. Registrar general for England and Wales[19]: The UK Supreme court considered gender identity and parental registration, holding that a transgender man who gave birth must be registered as “mother”. It significantly impacted legal parenthood concepts in assisted reproduction under Human Fertilisation and Embryology Act 2008.[20]   

2. United States: The US has no federal surrogacy statute and the regulation varies from state to state. Some states like California[21] has permitted the commercial surrogacy contract and provide pre – birth percentage orders. While as others restrict and prohibit such arrangements.

Case Law: Johnson v. Calvert[22]: The court upheld that the enforceability of a gestational surrogacy contract and recognised the intent of the commissioning parents as determinative of legal motherhood.  

3. Canada: The framework under “(Assisted Human Reproduction Act, 2004).”[23] It prohibits commercial surrogacy but allows reimbursement of expenses. The regulatory model balances surrogate protection with broader inclusivity for intended parents. Compensation rules are more flexible.

Case Law: Reference Re Assisted Human Reproduction Act 2010[24]: In constitutional reference, the Supreme Court of Canada examined the division of legislative powers between federal and provincial authorities in assisted reproduction. While it is not solely a surrogacy dispute, it clarified constitutional competence and shaped Canada’s regulatory boundaries.

4. France: Adopted the strict prohibitionist stance. Surrogacy agreements are void under the civil code and considered contrary to public policies and human dignity.

Case Law: Mennesson v. France[25]: In Mennesson case, the European court of Human Rights held that France’s refusal to recognise the parent – child relationship of children born through unlawful surrogacy abroad violated Article 8 of the European Convention on Human Rights (Right to Private Life)[26] with respect to the child.

5. Israel: Adopted the State – controlled but comparatively progressive surrogacy framework under the “Embryo Carrying Agreements (Approval of the Agreement and Status of the Newborn) Law, 1996”.[27] Israel permits surrogacy with state oversight and evolving inclusivity. Initially, the law only allowed heterosexual couples to access surrogacy but following up with constitutional litigation, based on gender equality and human dignity, it was expanded to include single women and later same – sex male couples.

Case Law: Arad – Pinkas v. Committee for Approval of Embryo Carrying Agreements[28]: The Israeli Supreme Court held that excluding same – sex male couples from access to surrogacy violated constitutional principles under Israel’s Basic law: Human Dignity and Liberty. The court directed the legislature to amend the discriminatory provisions. 

In conclusion, the Surrogacy (Regulation) Act, 2021 places the India at the global altruistic model of surrogacy regulation. It prioritised protection of women, prevention of commercialisation and moral oversight of reproductive practices.

Comparative Table

AMENDMENT OF THE SURROGACY (REGULATION) ACT – 2024

The Surrogacy (Regulation) Amendment Rules, 2024 introduced a significant change in the legal framework that governs the surrogacy rules in India. The original act was enacted to regulate the altruistic surrogacy and prohibit commercial surrogacy in order to prevent exploitation of women and protect the rights of children born through surrogacy. The act included new surrogacy rules for intended couples who met specific eligibility conditions and required that the child must be genetically related to that couple. From the earlier framework, the use of donor gametes was restricted and creating hardships for those couples where one partner is suffering from medical infertility and is not able to conceive.

To address these practical issues, the Central Government notified the Surrogacy (Regulation) Amendment Rules, 2024.[29] The main new changes introduced in the amendment rules are:

1. Permission to use one Donor Gamete (either egg or sperm).
2. Mandatory Medical Certification by District Medical Board.
3. Clarification for Single Women (Widow and Divorcees).[30]
4. Biological Link Requirement Retained.
5. No change in Ban on Commercial Surrogacy.[31]

FEMINIST CRITIQUE: RADICAL AND LIBERAL FEMINIST

Supporters claim that the act protects poor women from exploitation.[32] However, the critique is that how the infantilized women could be denied to choose compensated surrogacy?[33]  The act adopted a paternalistic stance, and assuming that women cannot make a rational decisions or choice.[34] Also, banning the compensation can reduce supply, and hence, pushing the surrogacy practice underground.[35] Furthermore, the black – marketing surrogacy increases the risk of more exploitation.[36] The altruistic surrogacy can be assumed as the availability of willingness but it can be unrealistic in many cases.[37] After, the decriminalization the homosexuality in famous case of Navtej Singh Johar v. Union of India[38], excluding LGBTQ+ persons from surrogacy is more regressive and unfair. Global human rights norms are increasingly recognize the diverse family structures.[39] Then, the Feminist scholars divided the critique into two categories:

1. Radical Feminist
2. Liberal Feminist

The Surrogacy (Regulation) Act, 2021 of India was criticised by both liberal and radical feminists, on understanding about women autonomy and exploitation. Liberal feminist argued that women are rational enough to take decisions and are capable of living independent regarding their bodies. In this perspective, the act banned the commercial surrogacy and limiting women’s reproductive autonomy and economic freedom.[40] Furthermore, the critique believed that instead of a complete ban, the law must regulate and protect surrogates through proper contracts, medical safeguards and justifiable compensation. They argued that the act is depriving the women’s choice under Article 14 and 21 of the Constitution of India.[41]

On the other hand, Radical feminists views surrogacy as a form of patriarchal and capitalist exploitation of women’s bodies. They argued that commercial surrogacy acts as a women reproductive commodity and reinforces gender inequality.[42] In this perspective, the prohibition on commercial surrogacy is a great step and protection for poor women from coercion. They argued that in a deeply unequal society like India, consent is not truly free and is influenced by poverty and social pressure.[43] However, many radical scholars are still criticising this act for permitting altruistic surrogacy in families and arguing that it many create emotional pressure on women to become surrogates without genuine consent.[44]

CONSTITUTIONAL ANALYSIS

The constitutional critique of the Surrogacy (Regulation) Act, 2021 lies in the broader interpretation of Article 21. The constitution of India had expanded the scope of “life and personal liberty” including: dignity, privacy and decisional autonomy. [45]The right to privacy recognised in K.S Puttaswamy v. Union of India includes decisional autonomy over reproduction.[46] Reproductive choices include procreating, avoiding procreation, or choosing methods of reproduction as a form of bodily integrity and decisions. The more constitutional model would treat surrogacy as a part of reproductive liberty and protection against coercion and exploitation and not to be moral gate keeping. This hierarchy is questionable because Article 21 does not privilege one form of family over another. Also, the privacy and decisional intimacy relating to family, marriage and procreation lie within the protected zone. The concern is that the proof of infertility medicalizes reproduction as many individuals choose surrogacy for many reasons like genetic risk, or personal autonomy. The law conflates regulation with surveillance. This regulatory framework should rely on consent over moral screening. The classification and excluded groups like unmarried heterosexual couples, live – in partners, LGBTQ+ and single men are more unfair and deeply rooted in social morality than constitutional morality. The act seems to be vulnerable to equality under Article 14 of the Constitution of India.[47] Furthermore, the “doctrine of Proportionality” requires legitimate aim, rational connection, necessity and balancing while the total ban on commercial surrogacy many result in more exploitation. Regulated compensation with strong constitutional safeguards may protect the women better.

CONCLUSION

The Surrogacy (Regulation) Act, 2021 as modified by the Surrogacy (Regulation) Amendment Act, 2024 has marked a significant shift in India’s reproductive law. The act replaces the earlier unregulated and commercial surrogacy market with a state controlled mechanism and humane in nature with certain negative sides. The primary objective of the act was to ban commercial surrogacy and prevent exploitation and ensure ethical medical practices. The combined effect of the 2021 act and 2024 amendment demonstrates India’s attempt to delicate balance between prevention and respecting reproductive autonomy. However, the legal regime lies in the constitutional accountability with the principles like dignity, equality, and privacy. A sustainable and just surrogacy framework must ensure that the regulation serves protection without being paternalistic and that ethical safeguards do not result in social exclusion.

REFERENCE(S):

[1] Amrita Pande, Wombs in Labor (Columbia University Press 2014)

[2] Sama Resource Group, Birthing a Market (2012)

[3] Surrogacy (Regulation) Act, 2021 s 4

[4] Kavita Rao, “Regulating Surrogacy in India” (2022) 7 IJL

[5] ICMR Guidelines 2005

[6] Pande (n 1)

[7] Baby Manji Yamada v. Union of India (2008) 13 SCC 518

[8] Lok Sabha Debates, 2019

[9] Surrogacy Bill 2019

[10] Act, s 3

[11] Act, s 38

[12] Act, s 2 (b)

[13] Act, s 4 (iii)(b)

[14] Act, s 4 (ii)

[15] Act, s 14 – 17

[16] The Surrogacy Arrangements Act, 1985 (UK) e 49

[17] The Surrogacy Arrangements Act, 1985

[18] UK Law Commission Report 2023

[19] R (on the Application of TT) v. Registrar general for England and Wales (2019) UKSC 40

[20] Human Fertilisation and Embryology Act 2008, c 22

[21] California Family Code s 7960s

[22] Johnson v. Calvert 851 P 2d 776 (cal 1993)

[23] Assisted Human Reproduction Act, SC 2004, c 2 (Canada)                 

[24] Reference Re Assisted Human Reproduction Act 2010 SCC 6135 CR 457

[25] Mennesson v. France (2014) App No 65192/11 (ECtHR)

[26] European Convention on Human Rights (adopted on November 1950, entered into force 03 September 1953) 213 UNTS 221 art 8

[27] Embryo Carrying Agreements (Approval of the Agreement and Status of the Newborn) Law, 5756 – 1996 (Israel)

[28] Arad – Pinkas v. Committee for Approval of Embryo Carrying Agreements HCJ 781/15 (Sup Ct Israel, 2020)

[29] Ministry of Health and Family Welfare, Surrogacy (Regulation) Amendment Rules 2024, GSR 119 (E) (21 February 2024)

[30] Surrogacy (Regulation) Act,2021 S2 and 4 (as read with the Surrogacy (Regulation) Amendment Rules 2024

[31] Surrogacy (Regulation) Act, 2021, s 4

[32] Government Statement of Objects and Reasons,2021

[33] Pande (n 1)

[34] Debra Satz, Why some things should not be for sale (OUP 2010)

[35] Sama (n 2)

[36] ibid

[37] Rao (n 4)

[38] Navtej Singh Johar v. Union of India (2018) 10 SCC 1

[39] UDHR art 16

[40] Martha C Nussbaum, Whether from reason or prejudice: Taking money of bodily services (1998) 27 Journal of legal studies 693

[41] Constitution of India 1950, arts 14 and 21

[42] Andrea Dworkin, Right – wing Women (Perigee Books 1983)

[43] Sharmila Rudrappa, Discounted Life: The Price of Global Surrogacy in India (NYU Press 2015)

[44] Kalindi Vora, Life Support: Bio capital and the New history of Outsourced Labor 9University of Minnesota Press 2015)

[45] Meneka Gandhi v. Union of India (1978) 1 SCC 248 9SC)

[46] Justice K.S Puttaswamy v. Union of India (2017) 10 SCC 1

[47] Constitution of India 1950, art 14