INTRODUCTION
Surrogacy is an arrangement whereby a woman gets pregnant and gives birth on behalf of another person or couple who will become the child’s legal parents after birth. People pursue surrogacy for a variety of reasons, such as infertility, dangers or undesirable factors of pregnancy, or when pregnancy is a medical impossibility. Surrogacy is highly controversial, with many countries legally regulating or banning its practice.
A surrogacy relationship or legal agreement contains the person who carries the pregnancy and gives birth, and the person or persons who take custody of the child after birth. The person giving birth is the gestational carrier, sometimes referred to as the birth mother, surrogate mother or surrogate. Those taking custody are called the commissioning or intended parents. Gestational carriers are usually introduced to intended parents through third-party agencies or other matching channels. They are usually required to participate in processes of insemination (whether traditional or IVF), pregnancy, and delivery.
CATEGORIES OF SURROGACY
Traditional Surrogacy: It is a form of surrogacy in which the surrogate mother’s own egg is used for conception, usually through artificial insemination. As a result, the surrogate mother is genetically related to the child she carries. This genetic link often gives rise to complex legal and ethical challenges, particularly concerning parental rights and custody disputes. Due to these complications and the potential for emotional conflict, traditional surrogacy is regarded as legally problematic in many jurisdictions and is not permitted under the current surrogacy laws in India.
Gestational Surrogacy: Gestational Surrogacy refers to a surrogacy arrangement in which an embryo is created through assisted reproductive technology using the gametes of the intending parents or donors and is subsequently implanted into the uterus of the surrogate mother. In this form of surrogacy, the surrogate does not have any genetic relationship with the child, as she neither contributes the egg nor the sperm.
EVOLUTION OF SURROGACY REGULATION IN INDIA
In India, surrogacy was mostly unregulated until official regulation. The sector quickly grew after the Supreme Court’s 2008 ruling in Baby Manji Yamada v. Union of India[1] implicitly acknowledged the legitimacy of commercial surrogacy. India quickly became a global centre for international surrogacy because of its cutting-edge fertility clinics and reasonably priced medical services. However, the lack of legal protections led to several prevalent issues, such as the exploitation of economically disadvantaged women, the absence of informed consent, child abandonment, and international legal conflicts about paternity and citizenship. In response, the Indian Council of Medical Research released non-binding recommendations in 2005, but these were insufficient to control the quickly expanding sector.
The Surrogacy (Regulation) Bill, 2016, which underwent multiple amendments before being passed as the Surrogacy (Regulation) Act, 2021, was the culmination of the State’s regulatory response. The new law represents a conscious policy decision to forgo market-based surrogacy in favour of an ethics-driven, state-controlled alternative. The Act came into force on 25 January 2022.
INTRODUCTION TO THE ACT
The Surrogacy (Regulation) Act, 2021, is a central legislation enacted to regulate surrogacy procedures, prohibit commercial surrogacy, and allow only ethical and altruistic surrogacy in India. The Act aims to protect the rights and health of surrogate mothers, safeguard the interests of children born through surrogacy, and prevent the misuse and commercialisation of reproductive technologies.
The Surrogacy (Regulation) Act, 2021, has a comprehensive scope and applies throughout India to regulate all surrogacy practices uniformly. The Act governs surrogacy arrangements involving intending parents, surrogate mothers, registered surrogacy clinics, assisted reproductive technology clinics, and medical professionals.
The Act lays down eligibility criteria, procedural safeguards, and regulatory mechanisms through the National and State Surrogacy Boards to ensure ethical practices. Its applicability is limited to Indian citizens, thereby excluding foreign nationals and cross-border commercial surrogacy arrangements, to protect the rights and dignity of surrogate mothers and safeguard the welfare of children born through surrogacy.
SALIENT FEATURES OF THE SURROGACY ACT
The Surrogacy (Regulation) Act, 2021, establishes a protective legal framework to regulate surrogacy in India and safeguard the rights of surrogate mothers. Through its key provisions, the Act ensures that any woman acting as a surrogate is legally protected from exploitation and is entitled to necessary safeguards and relief. By emphasising consent, dignity, and accountability, the Act aims to ensure that surrogacy is conducted in a fair, ethical, and regulated manner.
Section 6 of the Act states, written informed consent of surrogate mother- No surrogacy procedure can be undertaken without obtaining the prior written informed consent of the surrogate mother. The provision mandates that all known side effects and after-effects of the procedure must be clearly explained to her in a language she understands, ensuring that her consent is both informed and voluntary. Furthermore, the Act upholds her autonomy by granting her the right to withdraw such consent at any time before the implantation of the embryo.
Section 7 of the Act deals with the Prohibition to abandon child born through surrogacy- prohibits the intending couple or woman from abandoning a child born through surrogacy under any circumstances. It makes it clear that the child must be accepted regardless of factors such as genetic defects, medical conditions, sex of the child, or even in cases of multiple births. The section ensures that the responsibility of the child remains with the intending parents at all times, thereby safeguarding the rights, dignity, and well-being of the child.
Section 8 of the Act deals with the Rights of surrogate child- A child born out of a surrogacy procedure shall be deemed to be a biological child of the intending couple or intending woman, and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force.
WHETHER COMMERCIAL SURROGACY IS PERMISSIBLE IN INDIA?
Commercial surrogacy is prohibited in India under the Surrogacy (Regulation) Act, 2021. The legislation expressly bans any form of surrogacy involving monetary consideration to the surrogate mother beyond medical expenses and insurance coverage. The prohibition was enacted to prevent the exploitation and commodification of women, particularly those belonging to economically vulnerable sections of society.
Commercial Surrogacy: Commercial surrogacy denotes an arrangement whereby the surrogate mother receives financial compensation or any pecuniary benefit for rendering surrogacy services, apart from the permissible medical expenses and insurance. Such practices were previously prevalent in India; however, they were prohibited owing to ethical concerns, commercialisation of reproduction, and the potential exploitation of surrogate mothers.
Altruistic Surrogacy: Altruistic surrogacy constitutes the sole legally recognised form of surrogacy in India. Under this arrangement, the surrogate mother is not entitled to receive any monetary remuneration except reimbursement of medical expenses and insurance coverage incurred during the course of pregnancy. The arrangement is founded upon humanitarian considerations and the intention to assist the intending couple without any commercial motive.
SUGGESTED REFORMS FOR STRENGTHENING INDIA’S SURROGACY FRAMEWORK
Rationalisation of Eligibility Criteria: The legislature may consider revisiting and rationalising certain restrictive eligibility conditions prescribed under the existing statutory framework, particularly those relating to secondary infertility, the use of donor gametes, and the exclusion of unmarried individuals and other non-traditional family structures. Such reconsideration would ensure that the regulatory regime remains consistent with evolving societal realities, contemporary reproductive practices, and the constitutional principles of equality, dignity, and reproductive autonomy.
Strengthening of Protective and Regulatory Safeguards: The regulatory approach should progressively shift from an excessively prohibitory framework towards a rights-oriented and welfare-based model that prioritises effective safeguards for all stakeholders involved. Greater emphasis should be placed upon ensuring informed consent, medical and psychological safety, transparency in procedures, reimbursement of legitimate medical and ancillary expenses, and adequate protection of surrogate mothers from exploitation, coercion, or undue influence.
Mandatory Counselling and Support Mechanisms: A comprehensive framework providing mandatory psychological, legal, and medical counselling for both intending parents and surrogate mothers should be institutionalised within the surrogacy process. Such mechanisms would facilitate informed decision-making, minimise emotional and psychological distress, prevent coercive arrangements, and ensure that all parties fully understand the legal, ethical, and medical implications associated with surrogacy arrangements.
Strengthening Institutional and Regulatory Oversight: The National and State Surrogacy Boards, along with the Appropriate Authorities constituted under the statutory framework, should be vested with enhanced supervisory, monitoring, and enforcement powers to ensure effective implementation of the law. Additionally, the establishment of transparent grievance-redress mechanisms, stricter regulation of surrogacy clinics and ART centres, and periodic compliance audits would contribute towards greater accountability and regulatory efficiency.
Adoption of a Rights-Based and Constitutionally Aligned Framework: Future legislative and policy reforms concerning surrogacy should be guided by a rights-based approach that adequately balances regulation with reproductive freedom and individual autonomy. The legal framework must remain consistent with the constitutional guarantees embodied under Article 21 of the Constitution of India, including the rights to dignity, privacy, bodily autonomy, and reproductive choice, while simultaneously ensuring ethical regulation and protection against exploitation.
CONCLUSION
The Surrogacy (Regulation) Act, 2021, represents a significant legislative step in India’s attempt to regulate assisted reproductive technologies through a structured and welfare-oriented legal framework. By permitting only altruistic surrogacy while expressly prohibiting commercial arrangements, the statute seeks to prevent the commodification and potential exploitation of women, while simultaneously safeguarding the interests and legal parentage of children born through surrogacy.
At the same time, the regulatory framework reflects a cautious and restrictive approach, particularly in relation to eligibility criteria and procedural requirements, which has generated ongoing debate regarding its practical applicability and inclusiveness. While the Act establishes important safeguards through institutional oversight, defined eligibility norms, and regulatory authorities, its implementation reveals certain operational challenges and socio-legal limitations that warrant careful reconsideration.
Accordingly, while the existing framework lays a foundational regulatory structure for surrogacy in India, it is evident that continuous legislative refinement and policy reform are essential to ensure that the law remains responsive, inclusive, and constitutionally aligned with contemporary social realities. “Ultimately, the evolution of surrogacy law in India must reflect a legal system that is not only regulatory in nature but also humane, inclusive, and constitutionally enlightened.”
Author: Janvi Bagdee (Kanoria School of Law for Women, Jaipur)
References:
[1] Baby Manji Yamada v Union of India & others, AIR 2009 SC 84
