Commercial Surrogacy Regulation: Balancing Rights, Ethics, and Global Perspectives

Introduction

Surrogacy, as a reproductive arrangement where a woman agrees to carry and deliver a child for another individual or couple, has emerged as a complex legal frontier globally. While surrogacy offers hope to those unable to bear children, it simultaneously raises profound ethical, legal, and social questions—particularly in its commercial form.

The Global Landscape of Commercial Surrogacy Regulation

The international regulatory landscape for commercial surrogacy presents stark contrasts, reflecting diverse cultural, religious, and ethical perspectives:

• Prohibitionist Approach

Countries including France, Germany, Italy, Spain, and China have outright banned all forms of surrogacy. These jurisdictions typically view surrogacy as contrary to human dignity, potentially exploitative, and problematic for the resulting child’s identity rights.

• Altruistic-Only Model

Nations such as Canada, the United Kingdom, Australia, and the Netherlands permit only altruistic surrogacy, where the surrogate receives compensation solely for pregnancy-related expenses without additional payment. This approach aims to preserve the altruistic nature of surrogacy while minimizing exploitation risks.

• Regulated Commercial Model

Ukraine, Russia, and some U.S. states have established frameworks legalizing commercial surrogacy with varying degrees of regulation. These jurisdictions view adequately regulated commercial surrogacy as a legitimate exercise of reproductive autonomy.

• Transition States

Several countries, including India, Thailand, and Nepal, initially emerged as international commercial surrogacy hubs but have since implemented significant restrictions or complete prohibitions, largely in response to exploitation concerns.

India’s Regulatory Journey

India’s evolution in surrogacy regulation represents one of the most dramatic policy shifts globally and illustrates key contemporary tensions in the field.

• From Global Hub to Prohibition

India emerged as a global commercial surrogacy destination in the early 2000s, with an industry estimated at $2.3 billion annually at its peak. The combination of advanced medical facilities, lower costs, and limited regulation attracted thousands of international intended parents. However, concerns about exploitation, commodification of women’s bodies, and inadequate protection of surrogates’ rights led to significant regulatory changes.

The Surrogacy (Regulation) Act, 2021

After years of debate, India enacted comprehensive legislation with the following key provisions:

1. Prohibition of Commercial Surrogacy: The Act explicitly bans commercial surrogacy, permitting only altruistic arrangements.
2. Eligibility Requirements: Surrogacy is restricted to:
3. Indian married couples with medically certified infertility
4. Women with certain medical conditions preventing pregnancy
5. Widows or divorcees with medical necessity

• Surrogate Eligibility: A surrogate must be:
• A close relative of the intended couple
• Previously married with at least one biological child
• Between 25 and 35 years of age
• A one-time surrogate only

• Registration and Oversight: Surrogacy arrangements require approval from appropriate authorities and registration of surrogacy clinics.

Contemporary Challenges with India’s Approach

The strict regulatory framework has generated several unintended consequences and legal challenges:

1. Constitutional Challenges: Multiple petitions have challenged the Act’s constitutionality, arguing it violates reproductive autonomy protected under Article 21 (right to life and personal liberty).
2. “Close Relative” Restriction: This requirement has been particularly contentious, with critics arguing it unduly restricts access to surrogacy and may create complicated family dynamics.
3. Underground Market Concerns: Evidence suggests the prohibition has pushed commercial surrogacy underground rather than eliminating it, potentially increasing exploitation risks.
4. Access Inequality: The current framework disproportionately impacts those without eligible relatives willing to act as surrogates.

Contemporary Legal Issues in Commercial Surrogacy

• Cross-Border Reproductive Care and Legal Parentage

The patchwork of global surrogacy laws has created complex legal questions regarding citizenship and parentage for children born through international surrogacy arrangements. Key issues include:

• Statelessness Risk: Children born through international surrogacy arrangements may face citizenship challenges when the surrogate’s country considers her the legal mother while the intended parents’ country does not recognize the surrogacy arrangement.
• Inconsistent Recognition: Courts worldwide have reached divergent conclusions on parentage recognition, creating legal uncertainty for families formed through cross-border surrogacy.

The 2022 case of Mennesson v. France at the European Court of Human Rights marked a significant development, establishing that refusing to recognize legal parent-child relationships with children born through surrogacy abroad could violate the child’s right to private life under Article 8 of the European Convention on Human Rights.

•  Informed Consent and Exploitation

A central ethical and legal concern in commercial surrogacy involves ensuring genuine informed consent while preventing exploitation:

• Economic Coercion: Critics argue that significant payment can constitute undue influence for economically vulnerable women.
• Medical Risks: Questions persist about surrogates’ full understanding of medical procedures, potential complications, and long-term health impacts.
• Power Dynamics: Structural inequalities in terms of education, economic status, and agency may compromise true autonomy in decision-making.

Recent legal approaches have focused on developing robust counseling requirements, independent legal representation for surrogates, and cooling-off periods to address these concerns.

• Rights and Interests of the Child

Modern surrogacy regulation increasingly centers the child’s interests:

• Identity Rights: Some jurisdictions now recognize children’s right to information about their genetic and gestational origins.
• Best Interests Standard: Courts increasingly apply a “best interests of the child” standard in resolving contested surrogacy cases.
• Psychological Impact: Emerging research on the psychological impacts of surrogacy on resulting children informs evolving legal approaches.

• Technological Advances and Regulatory Gaps

Technological developments continue to outpace legal frameworks:

• Genome Editing: The potential application of CRISPR and other genome editing technologies raises new questions about the limits of reproductive autonomy.
• In Vitro Gametogenesis: Emerging capabilities to create gametes from somatic cells could further complicate parentage determinations in surrogacy arrangements.
• Artificial Wombs: Early-stage research on artificial womb technology may eventually transform the surrogacy landscape entirely.

Emerging Regulatory Models

• The Hague Conference Approach

The Hague Conference on Private International Law has been developing a multilateral instrument on international surrogacy arrangements that proposes:

• Minimum standards for surrogate protection
• International cooperation mechanisms for legal parentage recognition
• Child-centered approaches prioritizing children’s rights and interests

• The Capabilities Approach

Some scholars propose regulatory frameworks based on Martha Nussbaum’s capabilities approach, focusing on ensuring surrogates have genuine opportunities for autonomy while receiving sufficient protection.

• Professional Self-Regulation

Medical and legal professional organizations have developed ethical guidelines that influence practice even in jurisdictions with limited formal regulation.

Conclusion

The regulation of commercial surrogacy represents one of the most challenging frontiers in contemporary family law. The tension between reproductive autonomy and protection against exploitation remains central, with no regulatory approach yet achieving a perfect balance. As technology advances and global reproductive tourism continues, the need for thoughtful, evidence-based regulation that respects all parties’ rights while preventing exploitation becomes increasingly urgent.

Contributed By: Hetu (Intern)