THE AMIKUS QRIAE INTERNSHIP (AUGUST 2025)
TASK -1
DRAFTING OF A LEGAL RESEARCH PAPER ON –
“COMMERCIALISATION OF HUMAN BODY AND BODILY MATERIALS IN INDIA-LAW, ETHICS, AND SOCIETY”
Submitted by-
Jyothika Suresh
5th Semester,3-year LLB,
Thakur Ramnarayan College of Law, Mumbai
ABSTRACT
The human body has long been seen as sacred and untouchable, but advances in medical science and biotechnology have blurred the lines between selflessness and treating it like a commodity. In India, the commercialization of the human body and its materials is most evident in four areas: organ transplantation, surrogacy, assisted reproductive technologies (ART), and blood and plasma donation. These practices reveal a conflict between medical needs and the ethical obligation to maintain dignity. Despite a strong legal framework that includes the Transplantation of Human Organs and Tissues Act (1994, amended 2011), the Assisted Reproductive Technology (Regulation) Act (2021), and the Surrogacy (Regulation) Act (2021), issues like black markets, economic exploitation, and inconsistent enforcement still exist. India has seen notorious cases, such as kidney rackets in Tamil Nadu and Gujarat, while also being known as the “surrogacy capital of the world” before recent reforms. This paper explores how India’s social and economic conditions, along with weak regulatory oversight, have influenced the commodification of the human body. It applies a detailed analysis of laws, policies, court decisions, and government reports to assess whether India’s current approach effectively balances autonomy, dignity, and medical needs. It also places Indian discussions within the wider framework of global bioethical issues, suggesting ways to strengthen regulatory frameworks..
KEYWORDS
Organ Trade, Commercial Surrogacy, Assisted Reproductive Technologies (ART), Bioethics in India, Human Body Commodification, and Healthcare Regulation.
INTRODUCTION
The commercialization of the human body has raised deep ethical, legal, and social debates for a long time. At the centre of this discussion is a dilemma: should the body and its parts be seen as property that can be sold and bought, or should they be kept out of the market to uphold human dignity and generosity? In India, this debate is especially important due to the country’s demographic issues, economic differences, and changing healthcare sector. India’s large population, ongoing poverty, and inconsistent access to healthcare have created a strong environment for markets dealing in organs, reproductive services, and other bodily materials.
The rise of so-called “kidney bazaars” in India during the 1980s and 1990s marked one of the first moments when the international community began to seriously question the ethical implications of turning human bodies into commodities. It was a pivotal point, drawing global attention to the troubling intersections of economics, health, and human rights. These informal markets often involved coercion or deception of poor individuals, leading to international criticism and the enactment of the Transplantation of Human Organs Act in 1994[1]. Yet, despite this prohibition, black markets in organs persist even in 2025, with recurring reports of organ rackets in Tamil Nadu, Maharashtra, and Delhi.[2].
During the 2000s, India established itself as a prominent centre for commercial surrogacy. The country attracted intended parents globally, largely due to significantly lower costs and comparatively relaxed regulations than those found in many Western nations. This phenomenon effectively positioned India as a major player in the international surrogacy market. Scholars and activists, however, highlighted how poor women were disproportionately recruited into surrogacy arrangements, often with limited bargaining power and health safeguards[3]. The government responded with the Surrogacy (Regulation) Act, 2021, which banned commercial surrogacy and permitted only altruistic arrangements. While the law intended to address exploitation, critics argue that it simultaneously curtailed the reproductive autonomy of women who might have chosen surrogacy as a legitimate source of livelihood[4].
The rise of Assisted Reproductive Technologies (ART), including in-vitro fertilisation (IVF) and gamete donation, has further complicated the debate. India’s ART industry, valued at over ₹60 billion in 2023 and projected to grow at 12% annually, involves the procurement of eggs and sperm, sometimes under exploitative conditions.[5]Processes. Clinics have faced significant criticism for their lack of transparency, inadequate processes for obtaining informed consent, and failure to sufficiently safeguard donor interests. While the Assisted Reproductive Technology (Regulation) Act, 2021, was introduced to address these issues and bring standardisation and oversight to the sector, actual enforcement of its provisions remains inconsistent and, at times, insufficient.
Blood and plasma donation in India represents a slightly different ethical challenge. Although voluntary blood donation is encouraged, there have been recurring controversies over paid donations and plasma profiteering, especially during the COVID-19 pandemic.[6]. India continues to face shortages in blood supply: the National AIDS Control Organisation (NACO) reported in 2023 that India collects about 12 million blood units annually, but demand exceeds 14.5 million.[7].
Understanding the commercialisation of the human body and its materials in India means looking way beyond just the law or some abstract ethical principle. It’s where law, economics, and ethics all crash into each other. People aren’t commodifying their bodies out of nowhere—it’s usually the result of deep-rooted socio-economic inequalities. Simply banning these practices or preaching about altruism, without tackling those underlying issues, is kind of pointless. All it does is drive things underground, making exploitation worse and harder to see.
In this paper, I will explore the changes in India’s legal approach. I will examine important court cases and include the latest data. The main question is whether India’s current system truly balances the need for dignity with actual medical needs or if it still faces unresolved contradictions at the heart of bioethics.
RESEARCH METHODOLOGY
This research utilizes a qualitative doctrinal methodology for good reason. Frankly, the commercialization of the human body in India defies reduction to mere numbers; it’s tangled up in ethical debates, complex legal systems, and the gritty realities of society and economics. Just running stats on this? Hardly sufficient.
So, a doctrinal approach is essential—it lets us dig deep into statutory laws, pivotal court cases, and regulatory frameworks, really getting our hands on the legal nuts and bolts. But that’s not where it ends. By weaving in a socio-legal perspective, we position these legal texts within the broader, messier landscapes of power relations and inequality. In other words, we’re not just reading the letter of the law; we’re asking how it operates amidst India’s shifting social realities.
The primary sources informing this research include statutory frameworks such as the Transplantation of Human Organs and Tissues Act (THOTA) of 1994, as amended in 2011, the Surrogacy (Regulation) Act of 2021, and the Assisted Reproductive Technology (Regulation) Act of 2021. Landmark judicial decisions—including Baby Manji Yamada v. Union of India (2008) and Suchita Srivastava v. Chandigarh Administration (2009)—shed light on complex questions surrounding bodily autonomy and commodification within the Indian legal context. Empirical data are drawn from government authorities such as the National Organ and Tissue Transplant Organisation (NOTTO), the Indian Council of Medical Research (ICMR), and the National AIDS Control Organisation (NACO).
Secondary materials encompass peer-reviewed journals, books authored by legal scholars and anthropologists, reports from civil society organisations such as Sama, and policy briefs issued by NITI Aayog. Additionally, news publications like India Today, Frontline, and The Hindu are utilised to capture contemporary debates, public controversies, and the lived experiences of stakeholders.
Methodologically, the study adopts a thematic approach, focusing on four key domains where commodification is most apparent in India: organs, surrogacy, assisted reproductive technology (ART)/gametes, and blood/plasma. Each domain is analysed through the lens of its legal framework, actual practices, ethical dilemmas, and socio-economic ramifications. Where relevant, comparative references—such as Iran’s regulated kidney market or Spain’s model of deceased donation—are incorporated to contextualise India’s policy choices within a broader international perspective..
REVIEW OF LITERATURE
The commodification of the human body and its materials has generated considerable academic debate in India. Scholars from fields such as medical anthropology, feminist theory, legal studies, and bioethics have all weighed in, each bringing a distinct perspective to the discussion and highlighting the complexity of the issue..
1. Organ Trade
One of the earliest anthropological accounts is Lawrence Cohen’s essay Where It Hurts: Indian Material for an Ethics of Organ Transplantation (1999), which examined how the kidney trade in India reflected broader inequalities in health and class hierarchies.[8]. Cohen contended that the sale of organs by impoverished individuals in Chennai and similar contexts cannot simply be dismissed as an act of desperation. Instead, he situated these transactions within a broader economic framework—one that regards the body as divisible and fundamentally transactional. This perspective underscores how the human body, in such economies, is rendered a commodity subject to market forces.
Medical studies have documented the harmful consequences of organ selling. Goyal et al., in a landmark article in JAMA (2002), surveyed individuals who had sold kidneys in Chennai and found that most experienced deteriorating health and increased poverty after the transaction.[9]. This contradicted the popular perception that organ selling was a “win-win” solution. More recent analyses highlight the persistence of kidney rackets in India despite legal prohibitions, with the clandestine nature of the trade making it difficult to estimate its scale.[10].
2. Surrogacy
Commercial surrogacy often sparks intense debate. In her ethnographic study, Wombs in Labor: Transnational Commercial Surrogacy in India (2014), Amrita Pande explores the complexities of this phenomenon in detail. Provides a vivid picture of how surrogate mothers in Gujarat navigated complex emotional and contractual relationships with commissioning parents[11]. Pande describes surrogate labour as a form of “biocapitalism” where women’s reproductive capacities are commodified.
Civil society groups such as Sama Resource Group for Women and Health published Birthing a Market (2012), which critiqued surrogacy as exploitative, pointing to a lack of informed consent, health risks, and inadequate compensation for women.[12]. On the other hand, some scholars have argued that surrogacy may also provide agency and economic opportunity, provided that women are protected by strong regulation.[13]. The banning of commercial surrogacy in 2021 has thus been criticised as paternalistic, limiting women’s choices in the name of protection.
3. Assisted Reproductive Technologies (ART) and Gamete Donation
While the ART industry hasn’t sparked as much debate as organ trafficking or surrogacy, its significance is quietly growing. It might not dominate public discussions yet, but it’s becoming increasingly relevant and deserves more scholarly attention.. Sarojini and Srinivasan (2013) analysed the growth of India’s ART clinics and highlighted regulatory gaps, including the absence of data on egg donors and risks associated with repeated hormone stimulation[14]. While egg donation is frequently described as a voluntary act, the presence of substantial financial compensation—particularly for women facing economic hardship—raises serious concerns about genuine autonomy. When monetary incentives are involved, especially for those in vulnerable situations, the line between voluntary participation and subtle coercion becomes increasingly blurred.
The ICMR has issued guidelines on ART since 2005, but the lack of statutory backing until 2021 allowed clinics to function with minimal oversight.[15]. Scholars note that the commodification of gametes differs from surrogacy or organs, as it involves renewable tissues, yet the ethical issues of consent, exploitation, and commodification remain acute.
4. Blood and Plasma
Blood donation has been subject to a different set of debates. While WHO and NACO advocate voluntary donation as the gold standard, India has historically relied on replacement and paid donations. Studies indicate that paid donors are often from low-income groups, with implications for safety and coercion.[16]. During the COVID-19 pandemic, reports of black markets for convalescent plasma underscored how crises can exacerbate commodification even when altruism is expected.[17].
5. Theoretical Perspectives
Scholars like Nancy Scheper-Hughes and Margaret Lock have contributed globally to the theory of “the commodified body,” situating Indian practices within broader neoliberal economies of health.[18]. Indian feminist scholars, however, have stressed that global theories must be grounded in the Indian context of caste, poverty, and patriarchy.[19]. The literature, therefore, emphasises that commodification in India is not only about market forces but also about entrenched social hierarchies.
METHOD
- Organ Transplantation and the Persistence of Kidney Rackets
India’s history with organ transplantation is deeply intertwined with commercialisation. Despite the Transplantation of Human Organs Act (THOA) of 1994, which criminalised the sale of organs, underground markets continue to thrive. Data from the National Organ and Tissue Transplant Organisation (NOTTO) shows that India conducted approximately 15,500 solid organ transplants in 2023, a sharp rise from 12,746 in 2021[20]. This makes India the second-largest transplant country in the world, after the United States.
Yet, demand continues to outstrip supply. In 2023, the waiting list for kidneys alone was estimated at over 200,000 patients, while only about 12,000 kidney transplants were performed.[21]. The gap between demand and supply fuels black markets. In March 2023, Chennai police uncovered a major kidney racket involving poor migrant workers, many of whom had been coerced or deceived.[22]. Similar scandals have been reported in Gujarat, Delhi, and Maharashtra.
The ethical challenge here is that while THOA emphasises altruistic donation, the economic reality is that poverty drives individuals to “voluntarily” part with organs. Scholars argue that prohibition without alternatives only pushes the trade underground.[23]. By contrast, Iran’s regulated system—where kidney donors are compensated and registered—has been suggested as a model to reduce exploitation and illegal markets.[24].
The Indian legal framework does allow for swap donations and donations by near relatives, but bureaucratic delays and corruption often frustrate patients. Moreover, organ harvesting scandals raise questions about medical ethics, as private hospitals sometimes collude with brokers.[25]. The state’s failure to ensure equitable access to healthcare aggravates the commodification of organs: wealthy patients can afford transplants abroad or in elite hospitals, while the poor become “sources” of organs rather than beneficiaries.
- Surrogacy and Reproductive Labour
India became known globally as the “surrogacy capital of the world” during the 2000s and 2010s. Clinics in Gujarat, Maharashtra, and Delhi attracted commissioning parents from Europe, the US, and Australia, primarily because costs in India were a fraction of those abroad. In Anand (Gujarat), for instance, a surrogacy arrangement costs between $20,000–$30,000, compared to over $100,000 in the United States[26].
This global market relied heavily on the labour of poor and lower-caste women. Reports by Sama and scholars like Amrita Pande documented how women were often recruited through agents, housed in “surrogate hostels,” and subjected to strict medical supervision, with little say in the process.[27]. Critics argued this amounted to the commodification of women’s wombs.
The government responded with the Surrogacy (Regulation) Act, 2021, which banned commercial surrogacy and permitted only “altruistic” surrogacy for Indian couples who have been legally married for at least five years and medically certified as infertile.[28]. While this law was intended to prevent exploitation, it has been criticised for being overly restrictive. It excludes single parents, LGBTQ+ couples, and foreigners. Furthermore, by banning financial compensation, the Act arguably denies women the autonomy to choose surrogacy as a livelihood.[29].
Recent data suggests that the ban has not eliminated demand but rather pushed it underground. Investigative reports in 2024 revealed that secret surrogacy arrangements continued in Delhi and Hyderabad, often under the guise of “adoption” or “donor embryo programs.”[30]. Surrogate mothers said they received payment through informal means, without legal protections. Therefore, banning it has only changed how commercialization happens, not removed it.
- Assisted Reproductive Technologies (ART) and Gamete Donation
The ART industry in India has grown exponentially. According to IBEF, the Indian IVF market was valued at ₹62 billion in 2023 and is projected to reach ₹120 billion by 2030, driven by rising infertility rates, medical tourism, and corporate hospitals[31]. India’s cost advantage (IVF cycles costing between ₹1.5–2.5 lakh compared to ₹8–10 lakh in the West) has made it a global hub for reproductive technologies.
Egg donation and sperm donation are integral to this industry. Clinics often recruit egg donors, usually young women from low-income backgrounds, offering compensation between ₹30,000–₹80,000 per cycle.[32]. However, repeated egg retrieval can cause ovarian hyperstimulation syndrome (OHSS), However, repeated egg retrieval can cause ovarian hyperstimulation syndrome (OHSS), infertility, and long-term health problems. Critics say that informed consent is often insufficient, and donors rarely receive long-term medical follow-up. The Assisted Reproductive Technology (Regulation) Act, 2021, introduced licensing requirements for clinics, screening of donors, and limits on the number of donations. Enforcement has been weak. In 2024, the Indian Journal of Medical Ethics reported that unregistered clinics in Tier-2 cities continued to recruit egg donors informally, with little oversight.[33].
Here, commodification happens not just through direct payment but also by viewing fertility as a consumer good. Wealthy couples can “shop” for donors based on desired physical traits, education levels, or caste backgrounds. This approach embeds social hierarchies into reproductive markets. The donor’s body becomes a site for both medical extraction and social preference..
4. Blood and Plasma Donation
Blood and plasma represent another area where the balance between kindness and profit is debated. India needs about 14.6 million blood units each year, but it only collects around 12.5 million. This leaves a shortfall of nearly 2 million units as of 2023[34].
Paid donations have long been outlawed, but replacement donation (where a patient’s relatives or friends are required to donate to “replace” the blood used) remains widespread. During the COVID-19 pandemic, India witnessed a surge in plasma black markets, with units being sold for ₹20,000–₹50,000 in Delhi NCR.[35]. Even after convalescent plasma therapy was declared ineffective by ICMR, profiteering continued for months, revealing systemic regulatory weakness.
India also falls short of reaching 100% voluntary blood donation. While states such as Kerala and Tamil Nadu have surpassed 95% voluntary donation, others like Uttar Pradesh and Bihar still depend heavily on replacement models..[36]. The unevenness reflects broader socio-economic disparities.
From a bioethical perspective, blood and plasma are often treated differently because they are renewable resources. However, the issues of scarcity, black-market profiteering, and unequal access show that commodification still exists. Scholars argue that viewing blood only as a “gift of life” hides the structural inequalities that influence who donates and who gains from it..[37].
CASE STUDIES
- The Gurgaon Kidney Racket (2017) – Involving 12 people, including doctors, who illegally harvested kidneys from poor labourers for wealthy clients[38].
- Baby Manji Yamada Case (2008) – Where a Japanese couple commissioned surrogacy in Gujarat, leading to legal confusion on the citizenship of the child, and highlighting India’s absence of regulation at the time[39].
- COVID-19 Plasma Black Market (2020–21) – In Delhi, plasma units were openly sold online, with brokers exploiting desperate families[40].
- Egg Donation in Mumbai (2024) – Reported by Frontline, young women working in call centres were recruited by clinics for repeated egg retrieval, raising concerns about health risks and exploitation[41].
SUGGESSION
India’s experience shows that strict laws alone cannot solve the issues surrounding the commercialization of the human body and bodily materials. Organ transplantation requires systemic reforms like expanding cadaver donation, digitizing waiting lists under NOTTO, and ensuring independent oversight of hospitals. Additionally, regulated, state-supported compensation through health insurance or long-term care could help reduce the exploitation of vulnerable donors.
In surrogacy, the restrictive 2021 law needs to change to include single parents, LGBTQ+ couples, and limited, regulated compensation for surrogates, along with strong state monitoring boards. Assisted reproductive technologies need stricter regulation of clinics, long-term care for donors, and wider affordability through public health institutions. Similarly, India’s blood and plasma systems must shift to 100% voluntary donation, offering donor-friendly incentives and implementing stronger penalties for profiteering during crises.
Across all these areas, three key reforms are essential: incorporating bioethics education into medical training, increasing public investment in healthcare to lessen reliance on exploitative markets, and using technology like blockchain-based registries for transparency. With these steps, India can transition from a model of prohibition and exploitation to one of protection, dignity, and ethical access.
CONCLUSION
The commercialization of the human body and bodily materials in India shows a key conflict between human dignity and economic inequality. On one hand, laws like the Transplantation of Human Organs Act (1994), the Surrogacy (Regulation) Act (2021), and the ART Regulation Act (2021) reflect the state’s efforts to prevent exploitation. On the other hand, the ongoing issues with kidney rackets, underground surrogacy networks, unregulated gamete markets, and profit-seeking in blood and plasma reveal that prohibition often pushes commerce into more harmful and hidden forms.
The challenge is not just to ban commercialization but to create systems that balance autonomy, fairness, and dignity. A strictly altruistic model is not practical in a society with significant poverty. However, a free-market approach could reduce the human body to a commodity for trade. The best path forward consists of regulated models that ensure safeguards, informed consent, fair compensation, and strong state oversight.
WEBLIOGRAPHY:
The Hindu, “Chennai Police Bust Kidney Racket,” Mar. 2023, https://www.thehindu.com/news/cities/chennai-police-bust-kidney-racket.
Indian Express, “Covid-19: Black Market for Plasma Thrives in Delhi NCR,” June 2021, https://indianexpress.com/article/news/black-market-plasma-delhi-ncr.
IBEF, Healthcare Industry in India: Fertility and ART Market, July 2023, https://www.ibef.org/industry/healthcare-india.
[1] The Transplantation of Human Organs Act, No. 42 of 1994, INDIA CODE; Chennai Police Bust Illegal Kidney Racket, The Hindu (Mar. 2023).
[2] Chennai Police Bust Illegal Kidney Racket, The Hindu (Mar. 2023).
[3] Sama Resource Group for Women and Health, Birthing a Market: A Study on Commercial Surrogacy in India (2012).
[4] Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia Univ. Press 2014).
[5] India Brand Equity Foundation, Healthcare Industry in India: Fertility and ART Market Trends (July 2023).
[6] Covid-19: Black Market for Plasma Thrives in Delhi NCR, Indian Express (June 2021).
[7] Ministry of Health & Family Welfare, Gov’t of India, Nat’l AIDS Control Org., Annual Report on Blood Safety in India (2023).
[8] Lawrence Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, 128 Daedalus 199 (1999).
[9] Madhav Goyal et al., Economic and Health Consequences of Selling a Kidney in India, 288 JAMA 1589 (2002).
[10] Chennai Police Bust Kidney Racket, The Hindu (Mar. 2023).
[11] Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia Univ. Press 2014).
[12] Sama Resource Group for Women and Health, Birthing a Market: A Study on Commercial Surrogacy in India (New Delhi 2012).
[13] Jyotsna Agnihotri Gupta, Reproductive Biocrossings: Indian Egg Donors and Surrogates in the Global Market, 5 Int’l J. Feminist Approaches to Bioethics 2 (2012).
[14] N. Sarojini & S. Srinivasan, ART Regulation in India, 10 Indian J. Med. Ethics 28 (2013).
[15] Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005).
WHO & NACO, Blood Safety Report: India (2019).
[17] Covid-19: Black Market for Plasma Thrives in Delhi NCR, Indian Express (June 2021).
[18] Nancy Scheper-Hughes & Margaret Lock, The Mindful Body: A Prolegomenon to Future Work in Medical Anthropology, 1 Med. Anthropol. Q. 6 (1987)
[19] Sandhya Srinivasan, Commercial Surrogacy in India: The Need for Legislation, 7 Indian J. Med. Ethics 1 (2010).
[20] NOTTO, Annual Report on Organ Transplantation in India (Ministry of Health 2023).
[21] Indian Council of Medical Research (ICMR), National Transplant Waiting List Statistics (2023).
[22] Chennai Police Bust Kidney Racket, The Hindu (Mar. 2023).
[23] Lawrence Cohen, Where It Hurts: Organ Trade in India, 128 Daedalus 199 (1999).
[24] Benjamin Hippen, Organ Sales and Moral Arguments: Lessons from Iran (CATO Inst. Policy Report 2008).
[25] Mumbai Hospital under Probe for Illegal Kidney Transplants, Times of India (July 2022).
[26] Surrogacy Tourism: India’s Baby Boom Industry, India Today (Sept. 2012).
[27] Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia Univ. Press 2014).
[28] Surrogacy (Regulation) Act, 2021, Act No. 47 of 2021 (India).
[29] Sama Resource Group for Women and Health, Critique of the Surrogacy Bill (2021).
[30] Underground Surrogacy Rackets Thrive Despite Ban, The Wire (Apr. 2024).
[31] India Brand Equity Foundation (IBEF), Healthcare Industry in India: Fertility and ART Market (July 2023).
[32] Egg Donation and Exploitation in India’s IVF Clinics, Frontline (Jan. 2024).
[33] The ART Act One Year Later: Challenges of Enforcement, Indian J. Med. Ethics (Mar. 2024).
[34] National AIDS Control Organisation (NACO), Annual Blood Safety Report (2023).
[35] Covid-19: Plasma Black Market in Delhi NCR, Indian Express (June 2021).
[36] Ministry of Health, State-wise Voluntary Blood Donation Data (2023).
[37] Catherine Waldby, The Biopolitics of Blood Donation, 10 Body & Soc. 43 (2004).
[38] Gurgaon Kidney Racket Busted, Hindustan Times (May 2017).
[39] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 (India).
[40] The Plasma Scam During India’s Covid Crisis, Scroll (Aug. 2021).
[41] Young Women and Egg Donation in Mumbai Clinics, Frontline (Jan. 2024).