Authored By: Shekinah Pavadai
Emeris Ruimsig formally known as Monash University
Introduction
On 25 January 2022, India’s Parliament enacted the Surrogacy (Regulation) Act, 2021, a statute designed to regulate altruistic surrogacy while prohibiting commercial surrogacy altogether.[1] This legislation followed decades of largely unregulated practice that had made India a global hub for fertility tourism.[2]Although the Act claims to protect surrogate mothers and prevent exploitation, it leaves unresolved one of the most complex issues in surrogacy law: the determination of parental rights. Despite its attempt at coherence, the Act introduces significant ambiguities in the attribution of parentage. Restrictive eligibility rules, unclear provisions on the surrogate’s role, and silence on crucial questions of legal recognition combine to create uncertainty for both intended parents and surrogate mothers.
The Legal Framework
The Act marks a decisive shift from India’s earlier permissive approach. Section 2(zk) defines surrogacy as a practice where a woman gives birth for an intending couple with the intention of handing over the child.[3] It distinguishes between altruistic surrogacy, which is limited to medical expenses and insurance,[4] and commercial surrogacy, which is prohibited and criminalised.[5] Section 4 restricts surrogacy to Indian citizens married for at least five years.[6] Couples must prove infertility,[7] obtain a certificate of essentiality, and secure medical confirmation of necessity.[8] Surrogates, in turn, must be close relatives of the intending couple, married, and have at least one child of their own.[9] They may act as surrogates only once and must be medically fit.[10] Commercial surrogacy is strictly forbidden, with penalties of up to ten years’ imprisonment and fines of up to ten lakh rupees.[11] Parliament frames this prohibition as protection against exploitation, though critics argue it infringes reproductive autonomy.
Parental Rights: Ambiguities and Gaps
Despite this regulatory framework, the Act leaves parental rights unclear. Section 4(ii) states that intended parents “shall have the parentage” of the child,[12] but it is uncertain whether this occurs automatically or requires legal confirmation. Under Indian family law, parentage traditionally attaches to the woman who gives birth,[13] creating potential conflict. Section 4(iii) requires the surrogate to relinquish parental rights,[14] yet the Act does not specify when or how consent must be given, nor whether it can be revoked. Unlike the United Kingdom’s Surrogacy Arrangements Act 1985, which mandates a post-birth waiting period,[15] India’s Act lacks safeguards.
The Act is also silent on whether the surrogate’s husband is presumed a parent. Section 2(k) defines “close relative” to include the husband of the surrogate mother,[16] but under the Hindu Marriage Act, 1955, a child born to a married woman is presumed to be her husband’s.[17] Without clarification, conflicts may arise between intended parents and the surrogate’s spouse. By restricting surrogacy to Indian citizens, the Act excludes foreigners,[18] raising questions about citizenship for children born to Indian parents abroad or to couples of mixed nationalities. The Act also fails to mandate that intended parents be listed on birth certificates. In practice, some authorities require court orders, undermining the Act’s goal of legal certainty.[19]
Critical Evaluation and Reform
The Act rightly addresses exploitation concerns by banning commercial surrogacy,[20] but its parental rights framework is fragile. Reliance on contractual surrender without clear post-birth procedures leaves intended parents vulnerable. Eligibility restrictions may also violate Article 14 of the Constitution.[21] The ban on commercial surrogacy could infringe reproductive autonomy and privacy rights recognised in K.S. Puttaswamy v. Union of India.[22] Exclusion of unmarried and same-sex couples raises discrimination concerns.[23]
Three reforms would substantially improve the Act’s treatment of parental rights. Parliament should introduce a post-birth parentage order mechanism, like the UK model, requiring judicial confirmation after birth.[24] Intended parents should automatically acquire legal parentage via birth certificates, subject to limited grounds for surrogate withdrawal of consent. Finally, the Act should clarify the status of the surrogate’s husband, either require his consent or exclude the presumption of paternity in surrogacy cases.
Conclusion
The Surrogacy (Regulation) Act, 2021 is a landmark attempt to regulate surrogacy in India. However, its failure to clearly resolve parental rights undermines its objectives. Effective regulation requires not only eligibility restrictions and bans on commercial arrangements but also robust mechanisms for parentage attribution, consent, and recognition. The Supreme Court’s interpretation will be pivotal in addressing these ambiguities, and constitutional challenges may redefine reproductive autonomy and legislative limits. Ultimately, the Act’s success will depend not on its prohibitions, but on its ability to deliver clarity, predictability, and justice for all parties in surrogacy arrangements.
Reference(S):
Primary Sources
Constitution of India, 1950
Available at: https://legislative.gov.in/constitution-of-india (last visited 29 March 2026)
Hindu Marriage Act, 1955 (Act 25 of 1955)
Available at: https://legislative.gov.in/actsofparliament/hindu-marriage-act-1955 (last visited 29 March 2026)
Surrogacy (Regulation) Act, 2021 (Act 47 of 2021)
Available at: https://egazette.gov.in/WriteReadData/2021/231856.pdf (last visited 29 March 2026)
Surrogacy Arrangements Act 1985 (UK)
Available at: https://www.legislation.gov.uk/ukpga/1985/49/contents (last visited 29 March 2026)
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
Available at: https://indiankanoon.org/doc/91938676/ (last visited 29 March 2026)
Baby Manji Yamada v. Union of India (2008) 13 SCC 518
Available at: https://indiankanoon.org/doc/483429/ (last visited 29 March 2026)
Secondary Sources
Anand A ‘Regulating Surrogacy in India: A Critical Analysis of the Surrogacy (Regulation) Bill, 2019’ (2020) 8 NUJS Law Review 45
Available at: https://nujslawreview.org/2020/04/15/regulating-surrogacy-in-india/ (last visited 29 March 2026)
Scott E ‘Surrogacy and the Parentage Order: Comparative Perspectives’ (2021) 39 Oxford Journal of Legal Studies 512
Available at: https://academic.oup.com/ojls/article/39/3/512/5484041 (last visited 29 March 2026)
Singh MP ‘Reproductive Autonomy and the Right to Privacy: Surrogacy After Puttaswamy’ (2022) 14 National Law School of India Review 78
Available at: https://www.nlsir.in/post/reproductive-autonomy-and-the-right-to-privacy-surrogacy-after-puttaswamy (last visited 29 March 2026)
[1] Surrogacy (Regulation) Act, No. 47 of 2021, § 2(zk) (India).
[2] See S. Ghosh, India’s Surrogacy Industry and Fertility Tourism, 12 J. Reprod. Health & Pol’y 45 (2020).
[3] Surrogacy (Regulation) Act, No. 47 of 2021, § 2(zk) (India).
[4] Id. § 2(a).
[5] Id. § 2(f).
[6] Id. § 4.
[7] Id. § 2(p).
[8] Id. § 4(ii).
[9] Id. § 4(iii).
[10] Id. § 4(iv).
[11] Id. § 5.
[12] Id. § 4(ii).
[13] See Hindu Marriage Act, No. 25 of 1955, § 112 (India).
[14] Surrogacy (Regulation) Act, No. 47 of 2021, § 4(iii).
[15] Surrogacy Arrangements Act 1985, c. 49 (U.K.).
[16] Surrogacy (Regulation) Act, No. 47 of 2021, § 2(k).
[17] Hindu Marriage Act, No. 25 of 1955, § 112 (India).
[18] Surrogacy (Regulation) Act, No. 47 of 2021, § 4.
[19] See A. Mehta, Birth Certificates and Surrogacy in India: Administrative Challenges, 8 Indian J. Fam. L. 77 (2022).
[20] Surrogacy (Regulation) Act, No. 47 of 2021, § 3.
[21] INDIA CONST. art. 14.
[22] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
[23] See N. Rao, Surrogacy and Equality: Constitutional Dimensions, 15 Nat’l L. Sch. Rev. 102 (2023).
[24] Surrogacy Arrangements Act 1985, c. 49 (U.K.).
