SURROGACY LAWS – PROTECTING RIGHTS OF THE CHILD, SURROGATE AND INTENDED PARENTS 

ABSTRACT

Surrogacy is a good way for people who do not have their own children. They also can have a child, but it comes with a lot of moral, legal, and social problems. In India, Surrogacy is controlled by the “Surrogacy (Regulation) Act, 2021”[1]. It only lets surrogacy happen for good reasons and not for business motives to stop exploitation. This article talks about how the government works to protect three crucial groups of individuals: the kid, the surrogate mother, and the people who wish to be parents. There are parts that protect the child’s health and legal parentage, the surrogate’s rights by needing permission and paying for medical care, and the parents’ rights to custody. Some people don’t like that the Act only enables close family members to be surrogates and not single or LGBTQ+ people. This article shows through legal research and case studies that surrogacy agreements need to be altered in a way that is fair and respects respect, equality, and kindness.

KEYWORDS

Surrogacy, legal parentage, surrogate rights, child protection, ethical concerns, LGBTQ+ exclusion, consent, exploitation, family law, regulatory reform.

INTRODUCTION

Infertility is a condition that involves both women and men and is complicated by a variety of factors, from age to genetics to lifestyle, etc. The many causes of infertility can sometimes include remedies that “reverse” the cause of infertility, for example, in vitro fertilization (IVF) or surrogacy. When everything else fails, surrogacy can offer hope, or at least an alternative to pregnancy. While some medical options may be better than nothing, there is no guarantee of success; surrogacy is, therefore, a different alternative. Surrogacy is a process whereby one woman carries to term the child of another person or couple. Although medical factors are in favor of the process, surrogacy creates a varied and complicated series of legal and ethical dilemmas that include bodily autonomy, parental rights, and the welfare of the child. Surrogacy is fraught with the risk of commodification and bodily exploitation without adequate regulations; it also risks exploitation and abuse by surrogacy agents working in very opportunist ways, custody battle conflicts amongst the participants, and inadequate administrative functioning and assurances. India, by the early 2000s, India had emerged as a leading commercial surrogate destination for international companies primarily because of minimal costs associated with commercial surrogacy (and quality of medical care comparable to developed countries). Commercial surrogacy is also unfortunately exempt from necessary forms of regulation since it is often exploitative of vulnerable women, and children are not guaranteed a legal status when prearranged internationally. All of this significant background and more extensive introduction led to a quite lengthy discussion about the regulations for surrogacy, This change occurs due to change in legislation and its limitations under the acts for surrogacy which are “Assisted Reproductive Technology (Regulation) Bill 2008”[2] and Surrogacy (Regulation) Act, 2021. Stated simply enough, the Surrogacy (Regulation) Act, 2021 repeals commercial surrogacy and only allows altruistic surrogacy, but it is limited to quite a few specific instances.

 LEGAL FRAMEWORK

In India, Surrogacy is mainly regulated by the Surrogacy (Regulation) Act, 2021, along with Assisted Reproductive Technology (Regulation) Act, 2021. Both laws are meant to ensure ethical practices in surrogacy, protect vulnerable women from exploitation, and address the interests of the child and intended parents.

Key Provisions of the Surrogacy (Regulation) Act, 2021

1. Type of Surrogacy Permitted

• The only permitted type of surrogacy is altruistic surrogacy, whereby the only compensation permitted is for medical expenses and insurance expenses.
• Commercial surrogacy (i.e., monetary or financial gain or reward) is not permitted.

2. Potential Intended Parents’ Eligibility

• The intended parent must be an Indian citizen.
• Married couples must be married longer than five years.
• Wife must be aged 23 to 50; husband aged 26 to 55.
• Potential Intended Parents must not have any living biological, adopted, or surrogate child (unless there is a life-threatening or incurable condition).

3. Eligibility of Representatives

• Should be a close relation of the intending couple.
• Must be an adult (25 to 35 years).
• The person should be Married.
• One child at that time of surrogacy. (Mandatory)
• The person must act as a surrogate once in her lifetime.

4. Consent and Medical Checks

• The consent must be written.
• Must undertake a full medical and psychological check-up before proceeding.

5. The Insurance Coverage

• Surrogates must be offered insurance that extends for at least 36 months from delivery for issues concerning complications from their pregnancy.

6. Regulatory Bodies

• The national and state surrogacy boards will provide oversight and regulation of surrogacy functions.
• The appropriate authorities will have the mandate to issue eligibility certificates to intended parents and surrogates.

7. Penalty

• Commercial surrogacy, coercion, or exploitation may amount to a 10-year prison sentence and a fine of up to ₹10 lakh.

PROTECTION OF RIGHTS OF THE CHILD

The Surrogacy (Regulation) Act, 2021, operates on the premise that the child should always be viewed as the primary beneficiary of the surrogacy arrangement, and all facets of the surrogacy reflect its obligation toward the child’s welfare, identity, and legal status from the moment of birth.

1. Legal parentage and custody

• Automatic legal parentage is conferred upon the intending parents. When the child is born.
• This removes the question of custody or the surrogate mother being acknowledged as a parent.
• The birth certificate only contains the intended parent’s name, preserving the child’s family identity.

2. Right to Identity and Citizenship

• Clear legal recognition gives the child a right to a name, a nationality, and ties to a family.
• This will alleviate situations like Baby Manji Yamada, where a child was stuck in legal limbo due to conflicting international surrogacy laws.

3. Health and Medical Care

• The surrogate mother is required to undergo medical screening, guaranteeing that the child will be gestated in the best environment possible.
• The Insurance provided for the surrogate indirectly protects the child, protecting the delivery and any postnatal costs.

4. Prevention from abandonment

• The law disallows the abandonment of the child by intending parents, even if the abandonment occurs because of a disability or health issues.
• Intending parents are obligated to accept the child, regardless of the medical circumstances.

5. Security against trafficking and exploitation

• The Act limits the risk of children being commodified or exploited for illegal acts such as human trafficking or adoption rackets since commercial surrogacy is prohibited.

PROTECTION OF RIGHTS OF INTENDED PARENTS

The Surrogacy (Regulation) Act, 2021, guarantees the welfare of the child and the surrogate mother, but it also gives intended parents the reassurance and protection that come from legal certainty when they are investing not only capital in a surrogacy arrangement but also emotional and psychological resources as well.

1. Legal Recognition of Parenthood

• The Act facilitates legal parentage to the intended parents from the moment of birth. There is no requirement to adopt the child following delivery, as the Act accommodates a predetermined parentage agreement.
• The Act prevents potential custody disputes well in advance by ensuring legal parentage of the child and confirmation of the intended parents’ names on the child’s birth certificate.

2. Protection Against Withdrawal by Surrogate

• When the informed consent was given, the surrogate mother cannot withdraw and claim parental rights at whim. She cannot reduce emotional and legal uncertainty.

3. Protection Against Unethical Medical Practice

• ART clinics and surrogacy processes are regulated, which helps assure that processes will not lead to malpractice, fraud, or medical negligence.
• Intended parents are further protected from a clinic and/or intermediary financially exploiting them.

4. Security Custodial Situations

• For legally binding private agreements between intended parents and a birth parent, the law requires intended parents to assume custody of the child, even if any physical or mental disabilities may be detected after the child’s birth. This requirement ensures that there is neither an abandonment of the child nor a transfer of the parental obligation of raising the child to the state.

5. Confidentiality and Privacy

• The healthcare providers as well as regulatory authorities do keep confidential the medical and other personal information relating to the intending parents to maintain their private life from stigma or intrusion.

PROTECTION OF RIGHTS OF THE SURROGATE MOTHER

The Surrogacy (Regulation) Act, 2021, is very much directed at protecting the autonomy, dignity, and health of the surrogate mother as part of ensuring that she doesn’t suffer physical, emotional, or financial exploitation. 

1. Consent and Voluntariness

• Surrogacy can occur with the free, informed, and written consent of the surrogate.
• To this end, the surrogate must have understood the medical procedures, the potential physical risks to her health, and the legal ramifications before she enters into the agreement.

2. Medical and Health Safeguards

• A surrogate is subjected to comprehensive medical and psychological evaluation, ensuring her physical and mental health to receive a pregnancy.
• She is entitled to health coverage for at least 36 months from the delivery to insure her against pregnancy-related medical complications.

3. Protection against Financial Exploitation

• The ban on commercial surrogacy ensures that she is not treated as a “womb for hire” by profit-focused third parties.
• Beyond repayment of documented medical expenses and insurance coverage, financial incentive would not be introduced, thereby eliminating potential coercion in this arrangement.

4. Restrictions on Surrogacy Engagement

• A woman can only be a surrogate once in her lifetime—thereby reducing health risks from multiple pregnancies for someone else.

5. Legal Protection Against Abandonment or Abuse

• If the intended parents do not want to take the child, the legal framework protects the surrogate to ensure her rights are recognized and she is not left without custody or parental obligations.
• The agreement is enforceable through the regulatory authorities, which allows her legal remedy in the event of a dispute.

LANDMARK CASE LAWS

1. Baby Manji Yamada vs. Union of India[3]

People from Japan got in trouble with the law when they hired a trained surrogate in India and then broke up before the baby was born. The child didn’t have a parent because Indian law didn’t allow a single male parent to be a surrogate parent, and the father’s name wasn’t on the birth certificate. It meant mother wouldn’t give up control. The Supreme Court gave custody to the grandmother because they thought it was best for the child’s safety. This is proof of how important it is to control IVF right away. It was shown in this case that there are big legal holes in cross-border surrogacy, mainly when it comes to parenting, country, and custody. It also showed how hard and difficult it is to stand in for someone else’s morals in a different country.

2. Jan Balaz vs. Anand Municipality[4]

A couple from Germany experienced great difficulty acquiring an Indian visa for their son, who was born in India through surrogacy, because they were concerned about his nationality. The Gujarat High Court held the child was an Indian citizen from birth because he was born to an Indian surrogate. However, this case illustrated the difficulties that can arise from arranging to utilize a surrogate mother who is from another country. For instance, it can be challenging to secure the right paperwork and official approval. The verdict made it evident how crucial it is to establish clear and consistent nationality laws and guidelines to cope with the tough problems that come up when kids are born through surrogacy. It also talked about the legal issues that come up when people from different countries want to have kids and how those issues affect citizenship and becoming a parent.

3. Union of India vs. Baby Manisha[5]

In a surrogate case, there were problems when the intended parents were found to have broken the deal. Because of this, people began to question the adoptive mother’s rights. The Court made it clear that protecting surrogates from abuse is very important and that contracts must be bound by the law to do this. The decision made it clear how important it is for surrogacy agreements to have clear, legally binding contracts so that everyone is held responsible and treated equally. Strong rules must be put in place to protect the rights of surrogates because of this case. It also showed how important it is for surrogacy agreements to be legal and for safe ways to have children to be set up so that no one gets hurt and everyone has a chance.

CRITICAL EVALUATION

Despite the Surrogacy (Regulation) Act having been established to protect the surrogate mothers as well as the children through surrogacy, it has not done so successfully for a variety of reasons. Firstly, the Surrogacy (Regulation) Act only allows altruistic surrogacy and explicitly prohibits commercial surrogacy in an attempt to prevent commodification of children and exploitation of women, which has pushed commercial surrogacy underground and increased the potential for child trafficking and other illicit activities to take place. Secondly, the Act places the condition that a surrogate mother must be married and have a biological child prior to being eligible to be a surrogate mother, thereby excluding single women from engaging in the process. This condition, as a “merely” structural condition to including some women as surrogate mothers, reinforces social attitudes toward surrogacy and women’s reproductive autonomy. It also inhibits relatives who are willing to assist childless couples in having a child through surrogacy, hence denying a core objective of the Act.

Additionally, the Act does not include provisions for regulating the practice of surrogacy clinics nor making arrangements to provide for the welfare of surrogate mothers. While it emphasizes the importance of giving free and informed consent as paramount, the ability of women to give free consent in the context of family and community is frequently subject to external societal pressures and influences. The focus of the Act has shifted from being aimed at protecting rights to the issuance of certificates and enforcement of rigid compliance, making it less effective. Instead of families and surrogates being empowered to pursue alternatives by the Act, it has provided barriers or restrictions, making it clearly less accessible and more susceptible to abuse.

RECENT DEVELOPMENTS IN SURROGACY LAWS IN INDIA (2024–2025)

India’s surrogacy landscape continues to evolve, marked by legislative amendments, judicial interventions, and emerging challenges.

1. Amendment to Surrogacy Rules (2024)

The Surrogacy (Regulation) Amendment Rules were enacted in February 2024 and enabled the use of donor gametes (egg or sperm) in a surrogacy arrangement in cases where a clinical condition means that one of the partners cannot produce viable gametes. However, this will only be permitted when there is a certification from a District Medical Board to say that they have a medical need to use donor gametes.

2. Judicial Oversight and Challenges

Just days before reaching the upper age threshold to undergo fertility treatments under the Assisted Reproductive Technology (Regulation) Act, 2021, the Telangana High Court has permitted a 49-year-old woman to pursue fertility procedures, including follicle retrieval and storage. This case illustrates the judiciary’s ability to address cases that do not align with a statutory age limit.

3. Rise in Illegal Surrogacy Practices

Researchers have associated rigid surrogacy regulations with a rise in illegal surrogacy activities, such as baby trafficking. An example of this can be seen in Hyderabad, where a fertility clinic was found to have sold a baby for ₹35 lakh, falsely claiming that it was biologically related to the commissioning couple. The incident has led the Telangana government to initiate a high-level investigation into fertility and surrogacy clinics in order to remedy gaps in regulations, either by adopting new ones or to see if clinics are acting illegally.

4. Exclusion of Single and LGBTQ+ Individuals

Existing surrogacy laws in many jurisdictions continue to disenfranchise single persons and members of the LGBTQ+ community from using surrogacy services. This group has filed challenges through the courts to find remedies, as single persons and LGBTQ+ people in surrogacy are being discriminated against in their fundamental constitutional rights to equality and personal liberty. Future consideration may follow based on the Supreme Court’s ruling within “Supriyo vs. Union of India”[6] and at that time on the issue of recognition of same-sex marriages, as this group would subsequently have future rights when considering surrogacy situations.

WAY FORWARD

With recommendations from previous legislation that were never enacted, India has a responsibility to improve its surrogacy law to consider ethical, inclusive, and practical aspects. This will need to include ensuring single parents in India and LGBTQ+ parents can obtain surrogacy consistent with supporting the Constitution of India. Offering paid surrogacy with regulated employment can support economic benefits to women while also averting possible exploitation, if safeguards are included. Additionally, India should enhance and establish elements of clarity in terms of cross-border reproductive services, public enforcement of ART legislation, transparency in the surrogacy process, and the implementation of an education-based public awareness campaign to enhance surrogacy in India. Overall, these recommendations would work to achieve some balance or construction of a sustainable model that values dignity and autonomy, as well as the protection of children.

CONCLUSION

The Surrogacy Act 2021 supports ethical surrogacy, but it is not inclusive, nor is it built for autonomy. Limitations were introduced on eligible surrogates being married heterosexual couples, and prohibiting commercial surrogacy restricts the legitimacy of the rights. In order to create a fair and inclusive structure, India must broaden the scope of eligibility. Amendments will need to be made to provide regulation for ethical payments, clarify cross-border surrogacy issues, and place emphasis on equally enforcing and informing the public to ensure protection from exploitation.

REFERENCE(S):

WEBSITES

• https://www.nayalegal.com/surrogacy-in-india-laws-and-rights-for-intended-parents
• https://blog.ipleaders.in/rights-of-a-surrogate-mother/
• https://internationalfertilitycentre.com/surrogacy-law-in-india-2021/
• https://adfinternational.org/wp-content/uploads/2022/01/Surrogacy-Law-and-Human-Rights_digital.pdf
• https://fertilityworld.in/blog/surrogacy-laws-in-india/

[1] India Code, “Surrogacy (Regulation) Act, 2021” < https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf > accessed on 07 August, 2025

[2] The Hindu “Assisted Reproductive Technology (Regulation) Bill 2008”  < https://www.thehindu.com/opinion/editorial/art-of-life-on-assisted-reproductive-technology-regulation-bill/article30873613.ece > accessed on 07 August, 2025

[3] Baby Manji Yamada vs. Union of India (2008) 13 SCC 518. (India)

[4] Jan Balaz vs. Anand Municipality AIR 2010 Guj. 21. (India)

[5] Union of India vs. Baby Manisha 2015 DHC 7326. (India)

[6] Supriyo vs. Union of India 2023 INSC 920