Surrogacy as a mode of assisted reproduction has generated significant legal, ethical, and social discourse worldwide. In India, surrogacy was once a booming medical tourism industry attracting international couples seeking affordable and accessible reproductive services. However, the absence of clear legal regulation for many years led to widespread exploitation of surrogate mothers, commercialization of reproduction, and ethical concerns involving the rights of children born through surrogacy. In response, the Indian Parliament enacted the Surrogacy (Regulation) Act, 2021 (hereinafter “SRA 2021”) which now provides a statutory framework governing the practice of surrogacy in India. The law seeks to balance the reproductive rights of intending couples with the protection, dignity, and welfare of surrogate mothers and surrogate-born children. This article examines the evolution of surrogacy laws in India, the key provisions of the SRA 2021, significant judicial pronouncements, and current legal issues.
Historically, India did not have a specific surrogacy law. Until recently, the practice was governed by general principles of contract law and medical ethics under the Indian Contract Act, 1872 and relevant guidelines issued by the Indian Council of Medical Research (ICMR). The absence of clear statutory provisions allowed a largely unregulated industry to thrive, especially between 2002 and 2015. Clinics in states like Gujarat, Punjab, and Haryana became centers for international surrogacy arrangements. Concerns over commercialization and ethical abuses eventually led to judicial intervention. In Baby Manji Yamada v. Union of India (2008), the Supreme Court grappled with the legal status of a child born through a surrogacy arrangement involving an Indian surrogate and Japanese intending parents. The case arose when the intending parents separated before the birth of the child, leaving the child stateless because Indian authorities refused to grant travel documents. The Supreme Court recognized the child’s right to citizenship under Article 21 of the Constitution and directed the Central Government to issue appropriate documentation. While the judgment did not establish comprehensive regulatory norms, it underscored the need for legal clarity regarding surrogacy and citizenship of surrogate-born children.
The pivotal case that highlighted the urgent need for statutory regulation was Jan Balaz v. Anand Municipality (2010), where the Delhi High Court held that a child born to a surrogate mother is entitled to fundamental rights guaranteed under the Constitution. The court observed that surrogacy arrangements touch upon the right to life and personal liberty under Article 21 and thus require a legal regime that can protect the interests of all parties involved, particularly the child and the surrogate mother. This judicial concern was echoed in various high courts and policy debates, eventually prompting the Union Government to draft legislation.
The result was the Surrogacy (Regulation) Bill, which underwent several revisions and parliamentary deliberation before being enacted as the Surrogacy (Regulation) Act, 2021. The Act came into force in January 2022 and represents a comprehensive attempt to regulate surrogacy in India. Its core objectives include: prohibiting commercial surrogacy, preventing exploitation of surrogate mothers, safeguarding the rights of children born through surrogacy, and establishing a regulated framework for ethical practice.
One of the most notable features of the SRA 2021 is its ban on commercial surrogacy. Section 3 of the Act permits only altruistic surrogacy, which means that financial compensation beyond medical expenses and insurance coverage is prohibited. The surrogate mother is entitled to receive only reasonable expenses and insurance coverage for herself and the child. Section 2(a) defines altruistic surrogacy as surrogacy for a “close relative” where no monetary compensation is paid except for medical expenses and insurance. Commercial arrangements, where clinics or agents facilitate surrogacy for profit, are declared illegal under Section 4 and attract stringent penalties under Section 37.
The Act restricts access to surrogacy to Indian couples who have been married for at least five years, are of reproductive age (the wife aged 23-50 and the husband aged 26-55), and are medically certified as infertile (Section 4(1)). Single men, single women, live-in couples, and same-sex couples are not eligible under the current law. Widows and divorced women may access surrogacy under certain conditions, but only with specific legal permissions, as outlined in Section 4(2)(a). These eligibility criteria have raised debate among legal scholars about potential discrimination on the basis of marital status and sexual orientation.
Another significant aspect of the SRA 2021 is the establishment of a National Surrogacy Board and corresponding State Surrogacy Boards (Sections 5-11). These bodies are tasked with framing policies, advising governments, and ensuring compliance with the Act. Additionally, surrogacy clinics must be registered under the Act (Section 12), creating an enforcement mechanism to curb illegal practices. Clinics that breach regulations risk cancellation of registration, monetary fines, and even imprisonment for their operators.
Section 23 of the Act deals with the surrogate mother’s rights and welfare, entitling her to medical care and insurance coverage for herself and the child. The Act mandates a compulsory insurance policy for the surrogate mother for a period of 36 months from the date of delivery. This provision seeks to cover pregnancy and childbirth risks, acknowledging the health vulnerabilities faced by surrogate mothers. Moreover, the Act prohibits surrogacy for commercial gain by medical practitioners, agents, and intermediaries (Section 8), thereby criminalizing the involvement of brokers who had previously played a significant role in the industry.
Despite the comprehensive regulation, several legal challenges have arisen. In Independent Thought v. Union of India (2017), the Supreme Court held that provisions of the Protection of Children from Sexual Offences (POCSO) Act could apply to sexual acts causing pregnancy, including consensual acts where minors are involved. While this case did not directly address surrogacy law, it raised interpretative questions about the age of consent and reproductive autonomy, which indirectly influence debates around reproductive rights and surrogacy eligibility.
Another contentious legal issue concerns the eligibility criteria under Section 4. Critics argue that restricting surrogacy to heterosexual married couples discriminates against single parents and LGBTQ+ individuals, potentially violating Article 14 (right to equality) and Article 15 (prohibition of discrimination) of the Constitution. Although no definitive Supreme Court ruling has invalidated these criteria, the issue remains a live constitutional debate. There have been petitions challenging the exclusion of certain classes of persons, but courts have so far upheld the legislative prerogative in this sensitive social domain.
The SRA 2021 also faces implementation challenges. Enforcement capability, regulatory monitoring, and ensuring transparency in medical procedures are practical concerns. The Act prescribes intricate documentation requirements, medical certifications, and approval processes which, while necessary to prevent exploitation, may create bureaucratic hurdles for intending couples. Furthermore, the prohibition on compensation beyond medical expenses and insurance has led to concerns that surrogate mothers might be deprived of fair remuneration for their bodily labor, even in altruistic arrangements. Some legal scholars argue that a regulated compensation model, instead of a blanket prohibition on commercial surrogacy, might better protect surrogate mothers’ autonomy and economic rights.
The role of the National and State Surrogacy Boards has been pivotal but also subject to criticism due to variations in interpretation and implementation across jurisdictions. A related legal consideration is the ICMR Guidelines on Assisted Reproductive Technology (ART), revised in 2018. Although these guidelines predate the SRA 2021, they continue to influence clinical practices and ethical standards in fertility treatment. The ICMR guidelines emphasize informed consent, counselling, medical screening, and comprehensive documentation principles that broadly align with the statutory objectives of the SRA 2021. The interplay between medical ethics, clinical protocols, and legal mandates remains a complex regulatory tapestry.
In conclusion, surrogacy law in India has transitioned from a period of regulatory vacuum to a structured statutory regime under the Surrogacy (Regulation) Act, 2021. The Act’s focus on altruistic surrogacy, prohibition of commercialization, protection of surrogate mothers, and legal recognition of parentage marks a significant shift in legal policy.
Contributed by: Jai Rajawat Advocate
