The Surrogacy Framework in India

Introduction

It has been 4 years since the Surrogacy (Regulation) Act, 2021 has been in practice to regulate the surrogacy industry in India. The act was responsible for banning commercial surrogacy and legalizing altruistic surrogacy. Prior to the act, surrogacy in India was completely unorganized and India was known as a global destination for fertility tourism. Surrogacy was practiced in an unorganized and commodified form, often exploiting the poor women from the vulnerable sections of the society. India used to be called the “world capital of surrogacy” and the industry generated 2 billion dollars every year prior to the introduction of the Surrogacy (Regulation) Act, 2021. The act changed India’s booming free-market surrogacy industry to a moralistic and regulated industry. This article aims to discuss the status, legal guidelines, and loopholes of the current legislation governing surrogacy in India.

Defining Surrogacy

Surrogacy is a type of Assisted Reproductive Treatment (ART), where a woman agrees to carry a foetus to full term. There are two types of surrogacy: gestational surrogacy and traditional surrogacy. In the latter case, a woman is artificially inseminated with the intending father’s sperm and uses her own eggs to carry the child to full term whereas in gestational surrogacy, a surrogate carries an embryo with donor eggs and sperm to full term, not related to her genetically. Surrogacy can either be commercial (where the surrogate is compensated beyond medical and insurance expenses) and altruistic (where she is not). Commercial surrogacy has been banned under the Surrogacy Act, 2021.

The ban on commercial surrogacy, however, is a debatable issue as it prohibits a woman’s fundamental reproductive rights as well as her rights to earn a livelihood. Although there has not been a particular time identified when exploitation was rampant, it is noticeable that the commercialization of surrogacy has significantly increased since 2002. This was the year when the Indian government legalized commercial surrogacy to boost India’s image as the global fertility destination. With the fertility treatment costs being significantly lower than in the US and UK, and an ample pool of surrogate mothers, India soon became the surrogacy capital of the world. However, high-profile cases and increasing social pressure put an end to foreign adoptions in 2015, and zero-compensation altruistic surrogacy was legalized in 2016 for the residents of India.

Later, the Law Commission realized the need to regulate ART clinics and submitted its first report on the subject matter in 2009. Thereafter, the Surrogacy (Regulation) Bill, 2019 was passed by the Parliament and became active in 2021. Under the Surrogacy Act, 2021, surrogacy has been restricted to altruistic and gestational forms. Although the act banned commercial surrogacy to prevent further exploitation, the decision to completely ban it remains a debatable one. The act criminalizes commercial surrogacy to end the exploitation of women. However, the prohibition of surrogate motherhood violates women’s fundamental rights to livelihood as well as reproductive rights, choosing to bear a child for financial compensation. Surrogacy is the only reproductive option for infertile couples, and a complete ban on commercial surrogacy makes these couples resort to other unorganized and unsafe means of conception, thereby violating their fundamental rights to start a family. Therefore, although prohibiting commercial surrogacy helps end the exploitation of women, it also creates a dilemma involving the fundamental rights of Indian citizens.

Judicial Precedents:

The Supreme Court as a Catalyst for Legislative Evolution

Due to the conflict with the surrogacy rules, the matters relating to surrogacy are brought up in the Supreme Court several times, and due to its interpretation of the laws, several loopholes are plugged. Even though the Supreme Court does not directly formulate legislations, it influences the surrogacy laws by declaring certain provisions void. The judiciary acts as a balancing tool by protecting the fundamental rights of people, even the ones not conferred by the Constitution, such as the right to choose a career path as a surrogate mother. The Surrogacy (Regulation) Act, 2021, for example, was interpreted by the Supreme Court in the case of Vijaya Kumari v. Union of India (2025) to not apply upper age limits retrospectively. The Court mandated that the surrogate mother who had frozen her embryos prior to the commencement of the Surrogacy Act, 2021, shall not bear the constraints of the new laws, and her rights to choose shall not be infringed.

Another significant amendment was made by the Supreme Court when it overturned the restrictions imposed by the Surrogacy Rules, 2022. The rules mandated that an intending couple must use their own gametes to conceive a child, and the Court lifted the restrictions, allowing the use of donor gametes. Currently, the law permits the use of donor gametes, but only when there is a medical necessity, and only one donor can be used to prevent genetic interference with the intending couple’s genes. The Court has recently agreed to hear the petition challenging the constitutional validity of a surrogacy ban for a second child under the Surrogacy (Regulation) Act, 2021, and is currently determining whether it infringes upon the fundamental rights of the citizens. In this way, the Supreme Court influences the surrogacy laws by interpreting statutes and declaring them void if they violate the fundamental rights of the citizens, and acts as a balancing tool between the state and individual rights, particularly the reproductive rights.

Constitutional Foundations: Evaluating State Protectionism Against Fundamental Rights

India’s surrogacy and fertility laws, particularly the Surrogacy (Regulation) Act, 2021 prohibit commercial surrogacy. They aim to protect the vulnerable women from being exploited but are under constant attack in the Indian judiciary for violating fundamental rights such as the rights to privacy, equality, and livelihood. The Constitution of India guarantees every citizen fundamental rights that must be respected by the state. It recognizes the Right to Life and Personal Liberty enshrined under Article 21, and over the years; the judiciary has interpreted this fundamental right to include various other rights, such as the right to privacy. The landmark Kesavananda Bharati v. State of Kerala (1973) judgment gave a wide and just interpretation to the word “person” and included individuals from all walks of life, including unborn children and animals. Furthermore, in the case of K.S. Puttaswamy v. Union of India (2017), the Supreme Court recognized the Right to Privacy as an intrinsic part of the Right to Life and Personal Liberty enshrined under Article 21.

However, the Indian legislature views surrogacy as a form of exploitation of vulnerable women and does not recognize the fundamental right to choose surrogacy even though it infringes upon several fundamental rights, such as the rights to privacy, equality, and livelihood. Although the state’s concerns are valid, and commercial surrogacy indeed needs to be regulated, a total ban on surrogacy creates more problems than it solves. Under the Surrogacy Act, 2021, it is not possible for unmarried couples, live-in partners, and LGBTQ+ couples to seek surrogacy services in India which raises significant questions about the Constitution’s applicability and equality before the law enshrined under Articles 14 and 15. The rights of these vulnerable groups to start a family are dependent on the legislature either amending the Surrogacy Act, 2021 or the judiciary declaring certain provisions as unconstitutional.

Socio-Legal Consequences:

India’s Surrogacy (Regulation) Act, 2021 banned commercial surrogacy and allowed only altruistic surrogacy. Under the altruistic surrogacy, only widowed/divorced women and married heterosexual couples can become surrogate mothers or fathers. The intending parents who are legally married or are in a similar relationship can seek surrogacy services. The intending parents can take parental responsibility from the day of the birth of the child through the order of the Magistrate. The act creates a dilemma as several cases challenging the validity of the Surrogacy Act, 2021 are currently pending before the Indian Supreme Court. The Supreme Court has raised several questions concerning the violation of fundamental rights of citizens under the Surrogacy Act, 2021.

Under the Surrogacy Act, 2021, single men are prohibited from seeking any form of surrogacy services. There is no provision in the law that allows single men to take parental responsibility even if they have the sufficient financial capability to do so. Moreover, the law allows only genetically related surrogates, whereas there is no provision for using donor gametes, thus creating a challenge. These operational and legal hurdles created by the surrogacy laws are a matter of great concern as they infringe upon the fundamental rights of the citizens to choose their family planning method. Furthermore, these laws violate the right to equality and privacy under the Indian Constitution as the act prohibits single men and members of the LGBTQ+ community from choosing surrogacy as a method of family planning.

Conclusion

India’s Surrogacy Regulation Act has ended the era of rampant commercial surrogacy in India. The country’s current legislation successfully criminalizes the commercial surrogacy industry. However, even though India’s Surrogacy (Regulation) Act, 2021 has banned commercial surrogacy, it is very restrictive. The loopholes in the act, such as allowing only married, heterosexual, and related surrogacy, are under constant attack in the Indian judiciary. Thus, the future of India’s surrogacy framework will be dictated by the Supreme Court’s decisions concerning the legality of the surrogacy regulations and their adherence to the Constitution. In the long run, the success of the Surrogacy Act, 2021 will be determined by how successful it is in balancing the interests of the intending parents, the surrogate mothers, as well as the protection of the country’s vulnerable women.

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