ABSTRACT
The Surrogacy (Regulation) Act, 2021[1] passed by the Indian Parliament, brings a landmark but at the same time a controversial reform in the governance of assisted reproductive technologies. By prohibiting commercial surrogacy and permitting only altruistic surrogacy under highly restrictive conditions, the Act aims to safeguard surrogate mothers from exploitation and to promote ethical surrogacy practices. However, in making efforts to prevent abuse, the legislation clearly narrows the scope of reproductive rights, also raising critical questions about autonomy, equality, and inclusivity. This paper explores whether the Act represents a progressive stride toward protecting women’s dignity or a regressive measure that limits freedom of individual while upholding old-fashioned gender and sexuality roles.
Using a legal research approach combined with social and ethical analysis, this study examines the main parts of the Act, especially its narrow rules on who can apply, its focus on family-based unpaid help, and how it affects vulnerable groups like single people, LGBTQIA+ individuals, and women with low incomes. This research uses legal precedents, constitutional rights, global examples, and academic writings to evaluate whether the current law supports reproductive justice and personal freedom.
The results show a contradiction: although the Act rightly aims to prevent the exploitation of women and ensure proper regulation, at the same time it also enforces strict moral rules that limit reproductive freedom and access to surrogacy. The legislation’s failure to accept different types of family structures and reproductive choices risks pushing surrogacy into secrecy, increasing the risk of unsafe and unregulated practices.
In conclusion, this paper states that while the Act is a positive move toward ethically regulating surrogacy, it does not fully support or promote complete reproductive rights. It suggests some important changes, such as allowing properly regulated commercial surrogacy, expanding who can access it, and making sure the law respects constitutional principles like equality, dignity, and right to be free from discrimination. A fair, inclusive, and rights-focused approach is needed to ensure that India’s surrogacy law in India truly give individuals the power to make choices without compromising ethics or principles of social justice.
KEYWORDS
Surrogacy Regulation, Reproductive Rights, Altruistic Surrogacy, Legal Exclusion, Gender Autonomy, LGBTQ Rights.
INTRODUCTION
Infertility is becoming a serious health issue for many couples around the world, including in India. This condition can be caused by various factors such as age, lifestyle choices, genetic conditions, and environmental influences. As more people struggle with infertility, alternative methods like surrogacy have gained popularity to help individuals and couples become parents. In recent years, changing social values have also played a key role in increasing the acceptance of surrogacy, with people across different genders and backgrounds viewing parenthood as a shared goal.
The term “surrogacy” refers to the practice of using a woman’s womb to carry a fetus until birth to be raised by another. It is derived from the Latin word “subrogate”, meaning “accepted to act in the place of” or “a substitute”. As per American Law Reports, surrogacy is typically defined as “…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child’s birth”.[2]
There are two main types: altruistic surrogacy, where no money is exchanged except for basic medical and pregnancy-related expenses, and commercial surrogacy, where the surrogate is paid for her services. India became a global hub for commercial surrogacy between 2002 and 2015, largely due to low medical costs and the availability of willing surrogates. However, this also led to serious ethical concerns and cases of exploitation, especially of poor and underprivileged women. During the time when surrogacy was becoming legal, commercial surrogacy grew quickly because many poor women were willing to earn money by becoming surrogate mothers. It is estimated that around 25,000 surrogate babies were born in India each year, and about half of them were for foreign couples, especially from Western countries. In 2018 and 2019, there were many complaints made to the police about surrogate mothers being mistreated. Some cases even revealed human rights abuses disguised as surrogacy arrangements, and people were arrested in 2019 for being involved in these illegal activities. With the rise in cases of abuse and lack of legal safeguards, the Indian government decided to step in. After years of discussion, debates, and revisions, the Surrogacy (Regulation) Act, 2021[3] was passed. This law completely bans commercial surrogacy and allows only altruistic surrogacy under strict conditions. While the aim was to protect women and children from exploitation and regulate the process better, the law has also raised many questions about the rights of individuals to make reproductive choices.
This paper explores whether the Surrogacy (Regulation) Act, 2021[4] is truly a step forward in protecting reproductive rights or if it restricts personal freedoms and access to parenthood. It also examines the social, ethical, and legal aspects of the Act and its impact on different stakeholders, especially intended parents and surrogate mothers.
RESEARCH METHODOLOGY
This paper uses a mixed-method research approach:
Firstly, a legal analysisby deep reading of the Surrogacy (Regulation) Act, 2021 and relevant case law.
Secondly, a systematic literature reviewof the evaluation of peer-reviewed articles, legal critiques, grey literature, and media commentary.
Finally, a comparative analysiswith reference to international regulatory regimes such as New York State’s compensated surrogacy framework.
REVIEW OF LITERATURE
The existing literature on the Surrogacy (Regulation) Act,[5] presents mixed opinions on whether the law protects or limits reproductive rights in India. Researchers like Kumar[6] and Twine[7] explain how India became a global hub for commercial surrogacy due to low costs and lack of strict rules. However, this led to serious ethical concerns about the exploitation of poor women and the treatment of surrogacy as a business.
To tackle these problems, the new Act bans commercial surrogacy and only allows altruistic surrogacy, where the surrogate mother does not receive any payment apart from medical
expenses. Debnath[8] sees this as a positive move to protect women from being exploited by agents and private clinics. Contrarily, Banerjee and Kotiswaran[9] argue that the ban takes away a woman’s right to choose how she uses her body and also denies her a possible source of income. They point out that this could violate Article 21of the Indian Constitution[10], which guarantees the right to life, liberty, and livelihood.
Several scholars question the practicality of altruistic surrogacy. Debnath[11] calls it a “myth” because, without financial support, it is very difficult to find women willing to become surrogates. This could lead to secret and illegal surrogacy arrangements.
The Indian Express[12] criticizes the Act for not reflecting the progressive ideas on privacy and reproductive freedom laid down in the Puttaswamy judgment[13]. In comparison, countries like Ukraine and Georgia allow commercial surrogacy under strict regulations, which some people believe could be a better model for India to follow.
Sureshkumar[14] suggests that the law should be more inclusive and respect all kinds of families and choices, instead of being driven by moral or conservative values. The main worry in the House is that banning commercial surrogacy might lead to an increase in illegal or secret surrogacy. Since many in the infertility treatment industry focus on making money, they might use dishonest and corrupt methods, leading to more cases of abuse and wrongdoing. A recent case where a young girl was reportedly forced to sell her eggs shows how serious and harmful these situations can be. He stresses that if the law is not changed, it might hurt the very people it aims to protect.
Live-in couples are not included under the rules of the Act. Many people wrongly believe that live-in relationships are illegal in India, but that is not true. In the 2006 case Lata Singh v. State of UP[15], the court confirmed this. In another case, S. Khushboo v. Kanniammal[16], the Supreme Court said that live-in relationships are protected under Article 21[17] of the Constitution, which guarantees the right to life. Similarly, the Allahabad High Court ruled that a man and woman can live together without being married if they want to. The courts have made it clear that just because something is not accepted by society does not mean it is illegal. Still, it is unclear why the right to choose to become parents is not given to live-in couples, and this issue has yet to be resolved.
The 2021 Act[18] does not allow same-sex couples to use altruistic surrogacy. This reflects a narrow and traditional idea of what a family should look like, assuming it must be made up of a man and a woman, and also suggesting that women do not have full control over their own choices. Indian laws, social norms, and religious beliefs generally say that a child needs a mother and a father for proper development. But this belief is inconsistent, as the law allows single women like widows and divorcees to use assisted reproductive technologies (ART). This creates unfair treatment and leaves out people from the LGBTQIA+ community from using surrogacy. In the case of Navtej Singh Johar v. Union of India[19], the Supreme Court ruled that Section 377, which criminalized same-sex relationships, was unconstitutional. The judges said targeting LGBTQIA+ individuals because of their sexuality violates their basic rights, like equality, freedom, choice, and dignity. They also said LGBTQIA+ people deserve the same legal rights and should be treated fairly without discrimination.
In March 2023, an amendment was made which said that both the egg and sperm must come from the couple who wants to have a child through surrogacy. Donor eggs or sperm were not allowed. However, in October 2023, the Supreme Court, in the case of Arun Muthuvel vs. Union of India[20], made an exception. It allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome to use a donor egg for surrogacy. The Court said that this rule blocks couples from becoming parents through surrogacy and goes against the purpose of the Act. Later, in 2024, another amendment was made to the rules. This new amendment allowed the use of donor eggs or sperm in surrogacy but only if a District Medical Board confirms that one of the partners in the couple has a medical condition that makes it necessary to use donor gametes.
In summary, the literature shows that while the Act tries to stop the misuse of surrogacy, it also creates several new problems by limiting women’s rights and choices. Many scholars believe the law needs to be improved to find a fair balance between protection and personal freedom.
METHOD (ANALYSIS AND FINDINGS)
Protection of Surrogates:
The Act’s altruistic model prohibits commercial exploitation and mandates medical and insurance benefits for surrogates and their dependents. In principle, this ensures dignity in surrogacy arrangements. However, critics contend that banning all compensation effectively negates surrogate autonomy, forcing many to seek hidden agreements without protection.
Exclusionary Eligibility:
The Act limits surrogacy to Indian heterosexual couples married at least five years, women aged 23–50, men 26–55, and singles being only widows/divorcees aged 35–45. These criteria exclude LGBTQIA+ individuals, live-in partners, and unmarried individuals seeking parenthood, contradicting recent Supreme Court pronouncements and constitutional values of equality.[21]
Reproductive Freedom vs Social Engineering:
By targeting the surrogate rather than the parental claimant, the law reflects a gendered mistrust: women must conform to social norms to access reproductive services. The five-year waiting rule lacks medical rationale and intrudes into reproductive liberty.
Impact on Vulnerable Women:
Though oriented to prevent exploitation, the law may inadvertently harm vulnerable women who rely on surrogacy for financial autonomy. Without fair compensation, incentives for affluent and disadvantaged surrogates diminish alike. Additionally, surrogacy tourism abroad warms up to regulated, compensated frameworks elsewhere, leaving Indian women behind.
Ethical Intent v. Economic Reality:
The ban on commercial surrogacy aims to stop the exploitation of poor women by middlemen and clinics. Before the Act, India’s surrogacy market was growing fast, with thousands of surrogate births annually, many for foreign couples. While it is true that some women were exploited, many chose surrogacy to earn money, become financially independent, and support their families. By allowing only altruistic surrogacy, where no payment is allowed except for medical expenses, the Act removes a potential source of income for these women. This shows a difference between what the law is trying to do in theory and what is actually happening in real life.
Violation of Reproductive and Constitutional Rights:
The Act also limits who can use surrogacy, such as banning single individuals, LGBTQIA+ couples, and couples with one child. This is seen by many as a violation of the right to personal freedom and reproductive autonomy, which is protected under Article 21 of the Indian Constitution. The Supreme Court in earlier cases like Suchita Srivastava v. Chandigarh Administration[22] recognized a woman’s right to make decisions about her own body. By restricting reproductive choices and banning payments to surrogate mothers, the Act affects both the right to parenthood and the right to livelihood.
Practical Challenges in Implementation:
Although the Act sets up national and state-level boards to monitor and regulate surrogacy practices, delays in forming these bodies have created confusion and obstacles for intended parents and clinics. A 2022 case in the Bombay High Court showed how delays in putting the law into action caused confusion and stress for many couples. Additionally, the law’s ban on the use of donor eggs created further complications, especially for women with medical conditions like MRKH syndrome. The Supreme Court had to step in and stay this provision in 2023 to allow for exceptions based on medical needs.
International Perspectives:
New York’s compensated model offers surrogate protections via minimum payments, insurance, counselling, and withdrawal of right safeguards missing in the Indian framework. Italy’s outright bans raise concerns about legal consistency and human rights. A nuanced, rights-affirmative model emerges as preferable: not total ban, but regulation underpinned by respect, dignity, and plural family structures.
SUGGESTIONS
Expand Access Beyond Married Couples:
The current law allows surrogacy only for married Indian couples, excluding single individuals, same-sex couples, and those in live-in relationships. This restriction limits reproductive choices and could be viewed as discriminatory. The government should consider allowing responsible and willing individuals or couples regardless of their marital status or sexual orientation to access surrogacy services under strict ethical and legal guidelines.
Clarify and Ensure Fair Compensation for Surrogates:
Although the law bans commercial surrogacy, it allows for “reasonable” compensation, without clearly defining what is fair. This could lead to confusion or even exploitation. Clear, standardized compensation guidelines should be introduced to ensure that surrogates are treated with dignity and adequately supported financially for their physical, emotional, and time investment.
Address Gamete Donation:
Relax restrictions on donor gametes, ensuring medical necessity (e.g., MRKH syndrome) is accommodated without compromising donor privacy.
Include Provisions for International Surrogacy:
The Act does not regulate cross-border surrogacy, which may encourage people to seek services in other countries where regulations may be weak. This can lead to exploitation and legal complications. The Indian government should consider engaging in international agreements or frameworks to regulate and monitor international surrogacy in a safer and more ethical way.
Protect Surrogate Autonomy:
Allow surrogates to choose whether to engage in altruistic or compensated surrogacy, ensuring informed consent and psychological support to mitigate coercion.
Monitor and Respond to Surrogacy Tourism Trends:
The restriction of services to Indian citizens has reduced surrogacy within India but increased “surrogacy tourism” to countries with fewer regulations. This raises concerns about the welfare of surrogates in those countries. Policymakers should study these trends and develop strategies to prevent unsafe or unethical surrogacy practices abroad, while also improving domestic access under regulated conditions.
Strengthen Implementation:
Expedite the formation of National and State Boards to ensure effective regulation and address delays in surrogacy processes.
Monitor Underground Markets:
Establish mechanisms to track and regulate informal surrogacy arrangements, preventing exploitation in the absence of commercial options.
Regular Review and Policy Updates:
The social and medical landscape around surrogacy is constantly evolving. Therefore, it is important that the Act is reviewed regularly to reflect changing family structures, medical advancements, and global ethical standards. Public consultation and expert panels should be part of this ongoing evaluation process.
Public Awareness and Dialogue:
Conduct awareness campaigns and stakeholder consultations to address socio-ethical concerns and ensure the Act reflects India’s diverse societal needs.
CONCLUSION
The Surrogacy (Regulation) Act, 2021 is a significant step towards bringing much-needed regulation and ethical standards to the practice of surrogacy in India. It aims to protect surrogate mothers from exploitation and ensure transparency in assisted reproductive practices. However, in its current form, the Act also presents serious limitations by excluding certain groups like LGBTQIA+ individuals and single persons and restricting reproductive choices under the guise
of protection. These limitations raise concerns about whether the Act truly supports reproductive rights or simply reinforces traditional norms.
The ban on commercial surrogacy, although well-intentioned, may unintentionally reduce access to surrogacy and ignore the economic realities of many women who may have freely chosen to be surrogates. The lack of a compensatory framework and the rigid eligibility criteria could result in more harm than good by restricting access rather than supporting ethical surrogacy practices.
Therefore, while the Act is a step forward in regulating a previously unregulated sector, it also takes a step backward by failing to respect individual autonomy and inclusivity. To truly uphold reproductive justice, the law must evolve. A more balanced approach, one that allows regulated compensation, broadens eligibility, and protects the dignity and rights of all individuals involved is necessary. This will ensure that the law remains fair, just, and aligned with both constitutional values and the changing needs of society.
Fatema Topiwala
University of Mumbai, Thane Sub-Campus
[1] Surrogacy (Regulation) Act, No. 47 of 2021, India Code (2021), https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf.
[2] Narayan, G., Mishra, H. P., Suvvari, T. K., Mahajan, I., Patnaik, M., Kumar, S., Amanullah, N. A., & Mishra, S. S. (2023). The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?. Cureus, 15(4), e37864. https://doi.org/10.7759/cureus.37864
[3] Surrogacy (Regulation) Act, supra note 1, at 1.
[4] Id. at 3.
[5] Id. at 4.
[6] Kumar Aditya, Problems of Commercial Surrogacy in India, SSRN, 4-10 (2020)
[7] Twine, Outsourcing the womb: Race, class and gestational surrogacy in a global market, NIH (2015)
[8] Debnath, The Surrogacy (Regulation) Act, 2021: Analyzing the effectiveness of India’s ban on commercial surrogacy, Wiley (2023)
[9] Banerjee, S. and Kotiswaran, P. (2020) ‘Divine labours, devalued work: the continuing saga of India’s surrogacy regulation’, Indian Law Review, 5(1), pp. 85–105 (2020)
[10] INDIA CONST. art. 21
[11] Debnath, supra note 8, at 4
[12] Surrogacy 101, Indian Express (2022)
[13] Justice K.S.Puttaswamy(Retd) v. Union of India AIR 2018 SC (SUPP) 1841
[14] Sureshkumar, Balancing Ethics And Legislation: The Surrogacy (Regulation) Act, 2021 And Its Socio-Legal Implications In Modern India, SSRN (2023)
[15] Lata Singh vs State Of U.P. & Another 2006 AIR SCW 3499
[16] S. Khushboo vs Kanniammal & Anr AIR 2010 SUPREME COURT 3196
[17] INDIA CONST. art. 21
[18] Surrogacy (Regulation) Act, supra note 1, at 1
[19] Navtej Singh Johar vs Union Of India Ministry Of Law AIR 2018 SUPREME COURT 4321
[20] Arun Muthuvel Vs. Union Of India Writ Petition (Civil) 756/2022
[21] Narayan, G., supra note 2, at 2.
[22] Suchita Srivastava & Anr vs Chandigarh Administration AIR 2010 SUPREME COURT 235