Authored By: Muthumala K
Thulasi College of Law for Women
Introduction
India spent nearly two decades without any law governing surrogacy. During that time, the country became known internationally as a destination for cheap commercial surrogacy arrangements, and stories of surrogate mothers being abandoned, underpaid, or left without medical support were not uncommon. When the Supreme Court dealt with the situation of a stateless infant caught in a collapsed surrogacy arrangement in Baby Manji Yamada v Union of India, the absence of any legal framework to fall back on made the judgment deeply uncomfortable. The case was a wake-up call, and the Law Commission had already recommended in 2009 that Parliament enact legislation to ban commercial surrogacy and regulate altruistic arrangements.
The Surrogacy (Regulation) Act, 2021 was Parliament’s eventual response. It came into force on 25 January 2022 and brought, for the first time, a clear legal structure governing who can undertake surrogacy in India, under what conditions, and with what protections for the surrogate mother and the child. On that level, the legislation is a step forward.
The problem, however, is that the Act decides who is allowed to become a parent through surrogacy not purely on the basis of medical need, but on the basis of marital status and sexual orientation. Unmarried couples, single men, and same-sex partners are completely shut out. Even married couples who already have one child are barred in most circumstances. This article argues that these restrictions are not just unfair — they are constitutionally questionable and need to be revisited. The article looks at the Act’s parental rights framework, the constitutional concerns it raises, and what a better law might look like.
Who the Act Protects — and Who It Leaves Out
The Act permits only altruistic surrogacy, meaning no money changes hands between the intending parents and the surrogate beyond medical expenses and insurance coverage. The surrogate mother must be a married woman between the ages of twenty-five and thirty-five with at least one child of her own. She cannot use her own eggs for the procedure. These requirements are broadly sensible — they are aimed at making sure that surrogates give genuinely informed consent and are not driven purely by financial desperation.
The Act defines the eligible ‘intending couple’ as a legally married Indian man and woman, the husband aged between twenty-six and fifty-five and the wife between twenty-five and fifty. A widow or divorcee between thirty-five and forty-five years of age may also access surrogacy independently. Beyond these categories, the door is closed. Unmarried individuals, live-in couples, single men, and same-sex partners — regardless of how long they have been together or how genuine their desire for a child is — cannot access surrogacy under the Act at all.
There is also a restriction that applies even to those who are eligible: the couple must not already have a child, whether biological, adopted, or born through surrogacy. The only exception is if the existing child suffers from a serious disability or a life-threatening condition. So a married couple dealing with secondary infertility — where one partner develops a medical condition after the birth of their first child that makes natural conception or pregnancy impossible — is still barred. The Act offers them no pathway to a second child through surrogacy, however genuine their medical need.
The Act does protect the children born through these arrangements well. A child born through surrogacy is treated as the biological child of the intending couple for all legal purposes, including inheritance. And the penalties for commercial surrogacy are serious — up to ten years in prison. These are the Act’s genuine achievements. The issue is not what the Act does for those it includes, but who it excludes in the first place.
III. The Constitutional Problem
Two Supreme Court judgments are central to understanding why the Act’s exclusions are constitutionally difficult. The first is Justice K S Puttaswamy (Retd) v Union of India, the nine-judge bench decision that recognised privacy as a fundamental right under Article 21 of the Constitution. Crucially, the Court held that privacy includes decisional autonomy — the right of individuals to make choices about deeply personal matters, including family, reproduction, and relationships, without the state imposing its preferred choices. Any restriction on this right must pass a proportionality test: it must serve a legitimate purpose, be necessary to achieve it, and not go further than what that purpose requires.
It is hard to see how the Act’s blanket exclusion of same-sex couples or single men passes this test. The Act’s stated purpose is to prevent the exploitation of surrogate mothers and regulate the surrogacy process. There is no rational connection between that purpose and whether the intending parents are in a same-sex relationship or are unmarried. A same-sex couple does not make surrogacy more exploitative. A single man does not pose a greater risk to the surrogate mother. The exclusion appears to be based on the legislature’s view of which family structures are acceptable — and that is exactly the kind of value judgment that the Constitution, after Puttaswamy, does not permit the state to impose on individuals.
The second relevant decision is Navtej Singh Johar v Union of India, in which the Supreme Court recognised that same-sex individuals have the right to live with dignity and to express their identity without discrimination. If the state cannot criminalise same-sex relationships, it is difficult to justify why the state can categorically exclude same-sex couples from accessing parenthood through surrogacy when heterosexual couples in identical medical circumstances are permitted to do so. That looks like discrimination on the basis of sexual orientation, which Article 14 of the Constitution prohibits.
The existing-child restriction raises a separate but equally serious concern under Article 21. The Supreme Court has agreed to examine whether Section 4(iii)(c)(II) of the Act violates the right to reproductive autonomy, particularly for couples dealing with secondary infertility. The Delhi High Court has also questioned whether restricting single women’s access to surrogacy on the basis of marital status is constitutionally sustainable. These are not fringe arguments — they reflect a growing judicial recognition that the Act’s eligibility structure was drawn too narrowly.
The Act’s own internal logic has also been challenged in court. Originally, the surrogacy rules required that both intending parents contribute their own gametes to the procedure. In Arun Muthuvel v Union of India, the Supreme Court found this unreasonable in cases where a medical condition would result in complications if the intending parent’s own gametes were used. The government subsequently amended the rules in 2024 to allow donor gametes in such situations. That amendment was welcome, but it took a Supreme Court order to get there. The pattern is telling: the Act’s rigid provisions keep creating situations that the courts then have to correct.
Conclusion
The Surrogacy (Regulation) Act, 2021 was necessary, and it has done some things right. It ended the unregulated commercial surrogacy industry that was harming vulnerable women, it gave legal recognition to children born through surrogacy, and it created a basic institutional framework for oversight. These achievements matter.
But the Act went too far in one direction: it used the surrogacy framework to enforce a particular idea of what a family should look like. By excluding same-sex couples, unmarried individuals, and single men, and by imposing arbitrary restrictions on couples who already have a child, the Act denies many people the chance to become parents through surrogacy — not because of any risk they pose to surrogates or children, but because of who they are or what their family looks like.
This article submits that three changes are needed. First, eligibility should be extended to unmarried couples, single men, and same-sex partners, consistent with the constitutional values recognised in Puttaswamy and Navtej Singh Johar. Second, the existing-child restriction should be replaced by a medical assessment that evaluates each couple’s circumstances individually rather than applying a blanket bar. Third, any future restrictions on surrogacy access should be designed with proportionality in mind from the start, so that the courts are not repeatedly asked to fix what Parliament should have addressed.
The desire to have a child is one of the most deeply personal choices a person can make. A law that respects reproductive autonomy must protect that choice equally — not only for married heterosexual couples, but for everyone.
Reference(S):
Primary Sources
Baby Manji Yamada v Union of India (2008) 13 SCC 518.
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
Justice K S Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
Arun Muthuvel v Union of India, WP (Civil) No 1272 of 2022 (Supreme Court of India). Constitution of India, arts 14, 21.
Surrogacy (Regulation) Act, 2021, No 47, Acts of Parliament, 2021 (India).
Surrogacy (Regulation) Rules, 2022 (as amended by the Surrogacy (Regulation) Amendment Rules, 2024).
B. Secondary Sources
Law Commission of India, ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy’ (Report No 228, 2009).
Priyam Mitra, ‘An Unfulfilled Promise: Banning Commercial Surrogacy under the Surrogacy (Regulation) Act, 2021’ (2025) Journal of Indian Law and Society Blog.
Kirtipal Singh Kabawat and Govind Singh Rajpurohi, ‘A Critical Analysis of The Surrogacy (Regulation) Act 2021’ (2025) 11(7) Law Journals 45.
Kaur R and others, ‘Surrogacy in India: Legal, Ethical, and Social Dimensions’ (2025) 14(12S) Journal of Neonatal Surgery 684.
