Introduction
Surrogacy, once considered a niche medical recourse, has evolved into a widely discussed socio-legal and ethical phenomenon in India. The absence of a comprehensive legal framework led to commercial exploitation, rights violations, and medical malpractice, prompting legislative intervention. To curb unethical practices and regulate surrogacy in India, the Surrogacy (Regulation) Act, 2021 was passed by the Parliament, aiming to legalize altruistic surrogacy and prohibit commercial surrogacy. This Act marked a major shift in reproductive rights, women’s autonomy, and family law in India.
Meaning of Surrogacy
Surrogacy is a method of assisted reproduction where a woman (the surrogate mother) agrees to bear a child for another individual or couple (the intending parents), who will become the child’s legal parents after birth.
Under the 2021 Act, surrogacy is defined as:
“A practice whereby one woman bears and gives birth to a child for an intending couple and intends to hand over the child to them after birth.”
Need for Regulation
Before the enactment of the law, India became a hub for commercial surrogacy, earning the reputation of the “surrogacy capital of the world.”
Key reasons for regulatory intervention included:
- Exploitation of poor women as surrogates for wealthy foreign nationals or NRIs.
- Absence of legal parentage, leading to custody battles and stateless children.
- Ethical concerns and commodification of motherhood.
- Lack of medical safeguards for surrogate mothers.
- Global criticism, including recommendations from the Law Commission of India (228th Report) urging prohibition of commercial surrogacy.
The Surrogacy (Regulation) Act, 2021 – Salient Features
The Act provides a detailed regulatory framework covering the eligibility, procedure, and rights of all stakeholders in a surrogacy arrangement.
1. Legalization of Altruistic Surrogacy
- Only altruistic surrogacy is allowed — no monetary compensation, except for medical expenses and insurance.
- The surrogate mother must not receive any other payment or reward.
2. Prohibition of Commercial Surrogacy
- Commercial surrogacy — involving any form of monetary compensation — is strictly prohibited and punishable under the Act.
3. Eligibility of the Intending Couple
- Must be Indian citizens.
- Age criteria:
- Woman: 23–50 years.
- Man: 26–55 years.
- Must be legally married for at least 5 years.
- Must be infertile or unable to conceive, as certified by a District Medical Board.
- Must not have any surviving biological, adopted, or surrogate child (except in case of a mentally/physically challenged child or life-threatening disorder).
4. Eligibility of the Surrogate Mother
- Must be a close relative of the intending couple.
- Must be married and have at least one biological child of her own.
- Must be 25–35 years old.
- Can act as a surrogate only once in her lifetime.
- Must undergo medical and psychological screening.
5. Establishment of Authorities
- National Assisted Reproductive Technology and Surrogacy Board (NARSB) at the central level.
- State Surrogacy Boards.
- Appropriate Authorities to enforce standards, issue eligibility certificates, maintain records, and handle complaints.
6. Registration of Surrogacy Clinics
- All clinics must be registered under the Act and comply with prescribed standards.
7. Protection of Rights of the Surrogate Child
- Child born through surrogacy will be deemed the biological child of the intending couple.
- Has all legal rights, including inheritance.
Importance and Objectives of the Act
1. Protection of Women
- Prevents exploitation of economically vulnerable women.
- Ensures informed consent and health safeguards.
2. Ethical Practices
- Shifts the focus from commercial gain to compassion and family-building.
3. Legal Clarity
- Addresses issues of custody, parentage, and rights of the child.
4. International Compliance
- Aligns India’s policy with international ethical standards, especially after criticism from UN bodies.
5. Promotion of Medical Standards
- Ensures that ART and surrogacy procedures are conducted only in certified and monitored institutions.
Criticisms and Controversies
Despite its progressive intent, the Act has attracted significant criticism:
1. Restriction to Altruistic Surrogacy
- Critics argue that altruistic-only surrogacy is unrealistic in India’s socio-economic context.
- It risks coercion within families, particularly where the surrogate has limited agency.
2. Narrow Eligibility Criteria
- Restricting surrogacy to heterosexual, married couples excludes:
- Single parents.
- Live-in partners.
- LGBTQ+ individuals and couples.
- This is seen as a violation of Article 14 (equality) and Article 21 (personal liberty).
3. Close Relative Clause
- Mandating that the surrogate must be a close relative is invasive and limits the availability of surrogate mothers.
- It places undue pressure on women in families to bear children.
4. Absence of Surrogates’ Rights Framework
- While protecting against exploitation, the law does not grant enforceable rights or autonomy to surrogate mothers during pregnancy.
- No provision for psychological counseling, maternity benefits, or grievance redressal mechanisms.
Relevant Case Laws and Judicial Perspectives
- Baby Manji Yamada v. Union of India (2008) 13 SCC 518
- First major surrogacy case in India involving a Japanese couple and an Indian surrogate.
- The Supreme Court highlighted the lack of law governing surrogacy and need for legal clarity.
- Jan Balaz v. Union of India (2009)
- A German couple sought to take twins born via surrogacy in India back to Germany.
- Raised issues of citizenship, parentage, and statelessness of surrogate children.
- K. Kalaiselvi v. Chennai Port Trust (2013)
- Recognized maternity leave rights for commissioning mothers under surrogacy.
- Acknowledged the legitimacy of surrogacy-born children.
- Navtej Singh Johar v. Union of India (2018) and Justice K.S. Puttaswamy v. Union of India (2017)
- Though not directly about surrogacy, these cases emphasized the right to privacy, sexual orientation, and dignity, indirectly influencing debates on expanding surrogacy rights to all individuals.
Comparative Legal Framework: Global View
- USA: Allows commercial surrogacy in some states; legal contracts govern the relationship.
- UK: Permits only altruistic surrogacy; commercial surrogacy is banned.
- Ukraine and Russia: Permit commercial surrogacy, including for foreigners.
- Thailand and Cambodia: Banned surrogacy for foreigners after exploitation scandals.
India’s law aligns more with UK-style regulation, emphasizing ethics over commerce but has stricter eligibility norms than most Western countries.
Suggestions and Way Forward
- Expand Eligibility
- Include single individuals, divorced/widowed persons, and LGBTQ+ couples.
- Remove Close Relative Clause
- Permit willing and unrelated women to become surrogates under strict guidelines.
- Comprehensive Surrogacy Bill
- Integrate the Surrogacy Act with the Assisted Reproductive Technology (Regulation) Act, 2021 for procedural uniformity.
- Recognize Surrogate Mother’s Rights
- Guarantee maternity benefits, insurance, counseling, and legal aid.
- Create Surrogacy Awareness Programs
- Educate public about rights, ethics, and legal framework to dispel myths and stigma.
Conclusion
The Surrogacy (Regulation) Act, 2021 represents a bold legislative step towards curbing commercial exploitation and protecting the dignity of motherhood. However, over-regulation, narrow eligibility, and moral policing have restricted its inclusivity. In its current form, the law safeguards women from being commodified but also limits reproductive autonomy for many. For India to strike a balance between ethics, rights, and medical advances, the Act needs progressive reform rooted in constitutional morality and evolving social realities. A truly inclusive surrogacy regime must protect all stakeholders—intending parents, surrogate mothers, and the children born—equally and justly.
CONTRIBUTED BY : ANSHU (INTERN)