Authored By: Jaztejvar Singh Gill
Narsee Monjee Institute of Management Studies, Chandigarh
Abstract
The Surrogacy (Regulation) Act, 2021 marks a pivotal moment in India’s legislative method towards assisted reproductive technologies, with the goal to control exploitative practices and ensure meaningful as well as ethical surrogacy. The primary aim of the act is to protect women from commercialization by restricting commercial surrogacy and limiting surrogacy to altruistic relationships. As provided by Article 21 of the Indian Constitution, the legislation highlights pressing matters regarding reproductive autonomy, individual liberty and gender equity. Even though the Act places a strong emphasis on protection, its contradictory restrictive provisions for the prohibition of same-sex couple, single women, and those who do not come under the ambit of the definition of a “married heterosexual couple”, raises concerns about how it maintains patriarchal standards. This study critically analyzes the Act by using constitutional principles, statutory provisions and court rulings to determine whether the law strikes a balance between reproductive rights and regulation.
Keywords: Surrogacy (Regulation) Act, Reproductive rights, Personal liberty, Gender Justice, Constitutional morality.
Introduction
The concept of motherhood has always held deep cultural and social value in the nation. Though, in the recent years, advances in assisted reproductive technologies (ARTs) have started to restructure the traditional norms of procreation and family. Among such advancements, surrogacy has been considered one of the most debated practices. While it provides hope to childless couples, it also raises concerns about the commodification of women’s bodies, the rights of children born out of such arrangements, and the exploitation of economically weal women in such circumstances. The legislative structure of surrogacy has mainly been influenced by both scientific progresses along with the social anxiety of social, ethical and constitutional challenges.
The passing of the Surrogacy (Regulation) Act, 2021 marked a watershed moment in this debate. The act barred commercial surrogacy and only allowed considerate as well as altruistic surrogacy which permitted a woman to carry a child for the parents without any monetary reward aside from medical expenses and insurance. The main goal of the Act was to retrain the exploitation of disadvantages women who were treated as “wombs for hire” and safeguard the rights of surrogacy-born children. These objectives are crucial; however, the Act was criticized for being overly restrictive. The Act allowed only married heterosexual couple for surrogacy, excluding same-sex couples, single individuals and foreigners along with implementing strict conditions on the woman acting as the surrogate mother.
The restrictive characteristic of the provisions in the Act brought up pressing constitutional questions relating to reproductive rights and autonomy which have long been recognized as a part of the right to life and personal liberty as provided under Article 21. The Act’s restrictive provisions raise important constitutional concerns about reproductive rights and autonomy, which are central to the right to life and personal liberty under Article 21. Limiting surrogacy to a specific family structure upholds patriarchal norms and slows progress toward gender equality and women’s rights. This article takes a critical look at the Surrogacy (Regulation) Act, 2021, placing it in the context of legal, constitutional, and reproductive autonomy issues. The discussion starts with the legal background, reviews court interpretations of reproductive rights, closely examines the Act’s key provisions in the ongoing surrogacy debate, and ends with a look at the current situation, different viewpoints, and recommendations.
Legislative Framework
The legislative landscape of surrogacy in India has evolved considerably, changing from a framework that was open to a much stricter set of rules. In 2002, India legalized commercial surrogacy, allowing the nation to become a destination for people wanting assisted reproductive technology from outside the country. The combination of affordable, quality medical care, and virtually no laws, made it easy for couples to locate their surrogates. The growth of this industry also lead to systemic problems.[i] For instance, surrogates, often women in poor financial situations, lacked sufficient legal protection. Agencies acted without guidelines, and children born out of surrogacy had problems regarding citizenship and parentage, especially when parents sought surrogacy from outside the country.
In 2005, the Indian Council of Medical Research (ICMR) developed recommendations for assisted reproductive technology (ART) clinics.[ii] However, they were in the form of suggestions and had no mandatory effect. The case of Baby Manji Yamada v. Union of India[iii], introduced the need for statutory regulation of ART for surrogacy. The case involved an infant who was born through a surrogate mother in India for Japanese parents, who soon got divorced. The Supreme Court upheld the legality of surrogacy agreements, and acknowledged that the case was a legal quagmire, especially in the context of the question of Indian citizenship of the child and the surrogate’s legal rights. The Court also noted more generally that the law available was ill-suited to the situation presented by transnational surrogacy, and that the regulation of international surrogacy agreements unmistakably pointed to a desire for standardized surrogacy laws. This case highlighted many issues not only in terms of the legal vacuum of parentage in protecting surrogates but also the potential for exploitation in unregulated commercial surrogacy arrangements. By 2015, the government, concerned with reports of exploitation, trafficking, and abandonment of surrogates, prohibited surrogacy for foreign citizens. Eventually, this shift in government policy culminated into the tabled Surrogacy (Regulation) Bill, 2019. This bill represented a policy shift in favour of altruistic surrogacy and ultimately paved the way for the Surrogacy (Regulation) Act, 2021.
The legislation of 2021 adopted a rather protective, if not paternalistic stand. The Act highlighted total prohibition of commercial surrogacy, permitting altruistic surrogacy only where the surrogate is related to the intended parents in some manner. To qualify for altruistic surrogacy, intended parents must be a married man and woman that have been married for at least five years, must show evidence of being infertile, and must also show they are not a same sex couple or single individual or cohabiting partners, or foreigners.[iv] The surrogate mother must be a married woman, between the ages of 25 to 35, who already has at least one of her own children, and will only ever be a surrogate one time. Criminal penalties apply to any person commercializing surrogacy and exploiting a surrogate. This overall procedure and process is overseen by national and state boards.[v]
Despite the explicit objective of the Act being the prevention of exploitation, the text reveals a deeper ambivalence between protection and autonomy. The Act restricts surrogacy to a narrow and heteronormative definition of family and absolutely prevents women from the possibility of participating in any form of commercial surrogacy.[vi] The law also provides that women are incapable of making informed decisions about their reproductive labour, embraces patriarchal definitions of family, and diminishes constitutional principles of personal liberty, and reproductive autonomy. It can be observed that it violates Article 21 of the Constitution of India, which guarantees the right to personal liberty, and Article 14, guaranteeing equality before the law, as legal scholars have noted, the Act constrains choice and invites scrutiny under constitutional mandates.[vii]
Judicial Interpretation
Surrogacy under the Indian legislative structure has long been underdeveloped historically, with the judiciary playing a key role in interpreting principles which guided future legislative reforms. Before the passage of the Act, courts were often called to address the issues regarding parentage, citizenship, and custody of children born out of surrogacy. Through numerous landmark judgements, the judiciary has tried to maintain a balance between protecting the dignity of the child and women as well as responding to the problems arising out of cross-border reproductive arrangements. These judicial pronouncements provide a foundation of interpreting how constitutional principles and contractual provisions in the context of surrogacy.
One of the earliest and widely discussed case is Baby Manji Yamada v. Union of India[viii], where a Japanese couple’s divorce led to legal uncertainty of the surrogate-born child. The Supreme Court granted custody to the grandmother but highlighted the absence of a proper formal and codified framework as the child’s citizenship remained unclear and ambiguous. This case shed light upon the urgent need to codify and regulate surrogacy laws.
In Jan Balaz v. Anand Municipality[ix], the High Court of Gujarat addressed the issue regarding the child’s citizenship. A German couple had hired an Indian surrogate which led to the birth of twin boys. The couple who resided in United Kingdom, sought Indian passports so that they could travel abroad for the children. The passport authorities denied citing that the children’s citizenship status was unresolved and that Germany did not legally recognize surrogacy. The High Court emphasized that the welfare of the children must be of utmost importance and must be given primacy over contradicting legislative frameworks. Even though the court declined to grant Indian citizenship, it allowed exit permits and directed the German authorities to facilitate adoption by the German parents. This case revealed the interplay of reproductive tourism in the context of domestic and international laws along with demonstrating judiciary’s role in shaping solutions in the absence of an explicit law.
Beyond the issues of citizenship and custody, the judiciary also addressed reproductive autonomy in Suchita Srivastava v. Chandigarh Administration[x], held that Article 21 protects a woman’s right to reproductive choice as a part of privacy, dignity and bodily integrity which comes under the ambit of right to life and personal liberty. This reasoning is often cited when it comes to cases of surrogacy signifying that women should have a freedom of choice to become a surrogate or not.
Judicial interpretations have examined the contractual aspects of surrogacy. Due to no previous statutory backing, agreements made for surrogacy were backed by the Indian Contract Act, 1872. Many scholars argued that commercial surrogacy commodified life, there were comparative rulings which could be seen in English courts. The English Courts refused to enforce surrogacy contracts in the former case, while in the latter case, the Wisconsin Supreme Court upheld the contracts if it is consistent with child welfare.[xi]
Taken together, these judicial pronouncements played an incremental tole in shaping surrogacy laws and reforms. Even after the enactment of the 2021 Act, these precedents still play a crucial role in the evaluation of the problems arising due to the surrogacy laws.
Critical Analysis
The Surrogacy (Regulation) Act, 2021 aims to protect women and children from exploitation as well as uphold ethical standards when it comes to governing assisted reproduction, but it has raised issues and debates for curtailing reproductive autonomy, overlooking child welfare, and promoting patriarchal principles within the society.
- Denial of Reproductive Autonomy
The fundamental critique after the enactment of the Act lies in the ban on commercial surrogacy. By removing the option to allow women to engage in voluntary surrogacy for compensation, the statute undermines the bodily autonomy along with decisional freedom. The provisions contained in the act, as criticized, adopts a paternalistic stance which provides for the presumption that women cannot take informed reproductive decisions. This aspect directly contradicts Article 21 of the Constitution, which upholds the principle of liberty, bodily integrity and decisional privacy.[xii]
- Gender Justice and Discrimination
The eligibility criteria is rigid and restrictive in the sense that it is exclusive only to married heterosexual couples, thereby not considering same-sex couples, single parents, widows and divorcees. This provides for a narrow interpretation of “family”, which reinforces patriarchal norms and disregards various structures of kinship. Such exclusion is a discriminatory practice and undermines Articles 14 and 15, as it denies equal access to reproductive alternatives on grounds of the marital status and sexual orientation of the people. The legislation entrenches heteronormativity over inclusivity.
- Class Dimension and Women’s Agency
Even though commercial surrogacy did lead to vulnerable women being exploited, but an outright ban prohibits them from making a free economic choice. Numerous women willingly choose surrogacy as a source of livelihood after taking into consideration the safeguards. There is a need of a proper regulatory framework which ensures a fixed minimum compensation, health insurance and legal counseling to strike a balance between protection and autonomy.
- Impact on Children’s Welfare
The Act indirectly infringes the rights and dignity of surrogate-born children by denying them the opportunity to grow up in non-traditional but nurturing families due to the restrictive nature of who can become intending parents. The law usually overlooks the “best interest of the child,” and aims for a child-centric approach as recognized both in Indian jurisprudence and international conventions. Hence, a rigid and narrow definition of family not only affects reproductive rights but also compromises the welfare of the children born through surrogacy.
Suggestions for Reform
A contemporary framework in the nation should be adopted to balance reproductive autonomy with proper safeguards implemented, all while upholding constitutional and human rights principles.
- Broaden Eligibility Criteria
A balanced approach towards the criticism would begin by broadening the family structure and eligibility criteria. It should be made accessible to same-sex couples, single parents, and widows or divorcees, which is aligned with the constitutional ideals of equality and dignity. Realities of numerous diverse family structures should be adopted rather than sticking to the heteronormative principles.[xiii]
- Regulate, Don’t Prohibit Commercial Surrogacy
The legislature should maintain a proper procedural regulation of commercial surrogacy instead of banning it. The measures taken under such regulation should safeguard mothers from exploitation while balancing respect through autonomy of reproductive choices. It should involve mandatory contracts, health insurance, minimum compensation as well as informed consent process.[xiv]
- Strengthen Rights of Surrogate Mothers
The rights of surrogate mothers must be expanded beyond the duration of pregnancy. It should involve post-partum medical care, social support along with maternity benefits which are significant to prevent the surrogate to be neglected after the delivery of the child.
- Prioritize Child Welfare
The legislative framework along with judiciary should take a child-centric approach. It should place the child’s rights at the center of the legal structure, which would allow seamless legal recognition of parentage and the right to family.
- Adopt a Human Rights-Based Framework
Human rights is universal and India should adopt a human rights-based approach to surrogacy, in line with international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of Child. To ensure such an approach, transparent monitoring mechanisms should be adopted for ART Clinics which should be accompanied by public awareness campaigns promoting a more inclusive and accountable system.[xv]
Conclusion
The Surrogacy (Regulation) Act, 2021, is a product of protection from commodification and exploitation. But, in attempt to protect women and children, it became restrictive as it curtailed autonomy and excluded specific group of people from exercising reproductive rights. The consequence of such an Act is that, while advancing justice, it also entrenched inequality. As observed, reproductive rights is recognized under by the broad umbrella of personal liberty as provided by Article 21. The legislation should embrace inclusivity and autonomy by moving beyond traditional restrictions. By expanding the eligibility criteria, regulating instead of banning commercial surrogacy, and promoting the rights of both surrogates and children, can develop a legislative structure which strikes a balance between freedom and protection. Only then surrogacy can implement and fulfill the goal of parenthood while upholding the principles of gender justice and constitutionalism.
Bibliography
[1] Student of SVKM’s NMIMS, Chandigarh.
[i] Hemlata Rani & Dr. Seema Sharma, ‘Status of Surrogacy in India: A Critical Study’ (2020) 5 LRD 1.
[ii] Laxmi Murthy & Vani Subramanian, ‘Medical and Ethical Issues of Surrogacy: A Critical Review’ (2016) 14 Indian Journal of Medical Ethics 271.
[iii] [2008] 13 SCC 518.
[iv] Shruti Kandoi & Dr. Rajesh Kumar Verma, ‘Transnational Surrogacy and the Legal Vacuum: Rethinking Indian Regulation in a Globalized Reproductive Market’ (2025) 10 International Journal of Research and Innovation in Applied Science 167.
[v] The Surrogacy (Regulation) Act, 2021.
[vi] Rajiv Verma, ‘Surrogacy (Regulation) Act, 2021: Effectiveness and Concerns’ (2023) 8 IPLRJ 85.
[vii] Amruta Arjun Chavan, ‘A Critical Legal Study on Surrogacy with special reference to Gender Justice’ (2023) 4 ShodhKosh 1478.
[viii] Ibid.
[ix] AIR 2010 Guj 21.
[x] [2009] 9 SCC 1.
[xi] Pedro Brandão, Nicolás Garrido, ‘Commercial Surrogacy: An Overview’ (2022) 44 Rev Bras Ginecol Obstet 1141.
[xii] Gerard Pradeep Devnath & Senthil Kumaran, ‘Surrogacy in India: Ethical and Legal Aspect’ (2020) 14 Indian Journal of Forensic Medicine & Toxicology 387.
[xiii] Varsha D Vyas, Dr. Mandeep Kaur, & Dr. Arshi Pal Kaur, ‘Legal and Ethical Dimensions of Commercial vs. Altruistic Surrogacy in India: A Critical Analysis of the Surrogacy (Regulation) Act, 2021’ (2024) 5 ShodhKosh 1441.
[xiv] Ramneet Kaur & Others, ‘Surrogacy in India: Legal, Ethical, and Social Dimensions’ (2025) 14 J of Neonatal Surgery 684.
[xv] Gunjan Kumar Ravi, ‘Surrogacy and Human Rights in India’ (2023) 11 IJCRT 92.
