Surrogacy, once a marginal practice, has become a widely discussed issue in India due to advances in reproductive technology and rising infertility rates. For couples unable to conceive naturally, surrogacy offers hope of parenthood. Yet, it also raises complex ethical, legal, and social questions. For years, India was known as a hub for commercial surrogacy, attracting foreigners seeking affordable services. This led to controversies about exploitation of poor women, commodification of children, and the absence of clear regulation. Responding to these concerns, Parliament enacted the Surrogacy (Regulation) Act, 2021, placing strict restrictions on the practice. This article explores the legal framework governing surrogacy in India, the ethical dilemmas it raises, and judicial perspectives shaping the debate.
The Concept of Surrogacy
Surrogacy is an arrangement where a woman carries and delivers a child for another person or couple. It is of two types:
- Traditional surrogacy, where the surrogate is artificially inseminated with the father’s sperm and is genetically related to the child.
- Gestational surrogacy, where an embryo created from the intended parents’ gametes (or donors) is implanted in the surrogate, and she has no genetic link to the child.
In India, gestational surrogacy became increasingly common with the rise of in-vitro fertilization (IVF). Initially unregulated, it raised serious concerns about exploitation and child rights.
India as a Surrogacy Hub
Until recently, India was one of the top destinations for commercial surrogacy. Clinics offered services to foreign couples at relatively low costs. Poor women, particularly from rural areas, agreed to act as surrogates in exchange for financial compensation. While this created opportunities, it also led to allegations of exploitation, lack of informed consent, and abandonment of children born with disabilities.
The famous case of Baby Manji Yamada v. Union of India (2008) highlighted these complexities. A Japanese couple commissioned surrogacy in India, but their divorce left the child in legal limbo. The Supreme Court intervened to grant custody to the grandmother but called for regulation of the industry. This case sparked national debate and eventually led to legislative reform.
The Surrogacy (Regulation) Act, 2021
After years of deliberation, India enacted the Surrogacy (Regulation) Act, 2021, replacing the earlier unregulated system. The Act prohibits commercial surrogacy entirely, allowing only altruistic surrogacy where the surrogate is not paid beyond medical expenses and insurance.
Key features include:
- Only Indian married couples who have been childless for at least five years are eligible. Later amendments extended eligibility to single women (widows or divorcees).
- Foreigners, NRIs, and same-sex couples are barred from commissioning surrogacy.
- Surrogate mothers must be married, have a child of their own, and be aged 25–35.
- A woman can act as a surrogate only once in her lifetime.
- Surrogacy clinics must be registered, and strict penalties are prescribed for violations.
The law aims to prevent exploitation and commercialization, but critics argue it is overly restrictive and excludes many who need surrogacy.
Judicial and Ethical Perspectives
Courts in India have adopted a cautious but progressive approach. In Baby Manji (2008), the Supreme Court emphasized the need for regulation but allowed the child’s rights to prevail. In Jan Balaz v. Anand Municipality (2009), the Gujarat High Court dealt with citizenship of children born to German parents via surrogacy in India, highlighting the need for clarity in law.
Ethically, surrogacy raises difficult questions. Does banning commercial surrogacy protect women from exploitation, or does it deprive them of economic choice? Is altruistic surrogacy realistic in a society where not every woman may have a relative willing to carry a child? What about the rights of same-sex couples or single men who wish to become parents?
The Act addresses exploitation but is criticized for moral paternalism. Many argue that with proper regulation and consent, commercial surrogacy could empower women instead of exploiting them.
International Comparisons
Globally, countries take varying approaches. Commercial surrogacy is legal in the United States (in some states), Ukraine, and Russia. Others, like France and Germany, ban surrogacy entirely. India has taken a middle path: banning commercial surrogacy while permitting altruistic arrangements. However, the restrictive eligibility criteria make access limited compared to many jurisdictions.
Practical Challenges
Implementation of the Act has faced hurdles. Many clinics shut down due to strict licensing requirements, reducing options for genuine couples. Surrogate mothers complain of lack of clarity regarding insurance and medical support. Critics argue that the law fails to accommodate modern realities like surrogacy for LGBTQ couples, leaving them without options.
Enforcement is also difficult as underground surrogacy markets have emerged, with agencies finding loopholes. Without strong monitoring, exploitation risks continue.
Conclusion
Surrogacy law in India reflects the struggle to balance reproductive rights, social morality, and protection from exploitation. The Surrogacy (Regulation) Act, 2021 represents a decisive shift from India’s earlier laissez-faire approach to a highly restrictive framework. While it closes doors to commercial misuse, it also narrows the scope for many genuine cases.