NAVIGATING THE MAZE OF THE SURROGACY REGULATION ACT 2021: A
LEGAL ANALYSIS
ABSTRACT
The Surrogacy Regulation Act 2021, alongside the Assisted Reproductive Technology Act
2021, represents significant legal developments in India aimed at regulating surrogacy
practices and safeguarding reproductive rights. However, these laws have sparked intense
debate regarding their restrictive nature and potential infringement on women's reproductive
autonomy. This article provides a detailed analysis of these legislative acts, exploring their
implications for women's rights, the controversies surrounding their provisions, and the
potential legal and social consequences. Through a review of relevant case law and legal
principles, the article highlights the need for a balanced approach to surrogacy regulation that
respects individual rights while preventing exploitation.
BACKGROUND
Reproductive rights are a cornerstone of gender equality and human rights, encompassing the
right of women to make informed decisions about their bodies, including the access to safe
and legal reproductive health services. Despite the fundamental nature of these rights, they
are often subjected to restrictions, particularly in areas involving assisted reproductive
technologies (ART) such as surrogacy. The Surrogacy Regulation Act 2021 and the Assisted
Reproductive Technology Act 2021 were introduced in India to address concerns related to
surrogacy and ART practices
Before the Surrogacy (Regulation) Act, 2021, India was a global hub for commercial
surrogacy, but the lack of regulation led to exploitation of surrogate mothers, legal issues, and
ethical concerns. The need for regulation arose from reports of underpayment, inadequate
care for surrogate mothers, and concerns over the rights of surrogate children and the
commodification of motherhood. The issue was raised in the Lok Sabha of the Indian
Parliament when the government took a stand to disallow commercial surrogacy in its
response to question 100 on 4th December 2015. This led to the creation of the Surrogacy
(Regulation) Bill in 2016, which, following multiple amendments, was passed in 2018 by the
Lok Sabha. The Rajya Sabha created a committee for discussion of the Surrogacy
(Regulation) Bill 2019 1with various stakeholders, the conclusion of which led to some more
amendments, culminating in its passage into law on December 25, 2021. It was released
along with the Assisted Reproductive Technology (Regulation) Act, 2021, just a week prior.
On January 25th, 2022, the new Surrogacy (Regulation) Act, 2021, went into force2. The
amended act exclusively permits charitable surrogacy, preventing those with financial means
from abusing and taking advantage of the surrogacy option3. It prohibits commercial
surrogacy, as well as the trade of human gametes and embryos.4
CRITICAL ANALYSIS OF THE SURROGACY REGULATION ACT 2021
The Surrogacy Regulation Act 20215 was enacted with the primary objective of regulating
surrogacy practices in India, particularly to prevent the commercialization of surrogacy and
protect the rights of surrogate mothers. The act permits only altruistic surrogacy for married
Indian couples, prohibiting commercial surrogacy and excluding single individuals and gay
couples from availing of surrogacy services.
Chapter 1 of the 2021 Act identifies the most significant parties involved in gestational
altruistic surrogacy. Chapter 3 establishes the requirements for them to be eligible for
altruistic surrogacy in the Indian subcontinent.
Here are the parties involved in surrogacy first is an "Intending Couple" who is an Indian
infertile married couple, per the Act (the age of the woman being 23 to 50 years and the age
of the man being 26 to 55 years). The couple must not have any living children in order to
receive a certificate of eligibility for surrogacy (biological, adopted, or surrogate). The only
circumstances in which this clause would not apply is if their surviving child has a disability,
either mental or physical, or if the child has a condition that poses a serious risk of death6.
The Act also permits Indian widows, divorcees, and married couples of Indian origins living
abroad to become parents through altruistic surrogacy. An Indian widow or divorcee between
the ages of 35 and 45 who plans to use surrogacy is referred to as an "Intending Woman" 7
Second and foremost important party is surrogate mother. surrogate mother is a woman who
carries and gives birth to a baby for a person who is not able to have children. In the new law,
the definition and requirements for becoming a "surrogate mother" have been updated as
follows:
a) Any willing, ever-married woman between the ages of 25 and 35 who has her own child
may become a surrogate (does not address her eligibility should this child be borne of
surrogacy itself). b) May only sign up for surrogacy once in her lifetime, but up to three
attempts may be undertaken if embryo transfer does not take place. c) Must be physically and
mentally fit, as attested by a medical practitioner through certification. d) Prohibited from
providing her own gametes for surrogacy by the Act. e) Not receive any compensation for
carrying the child in her womb other than the necessary insurance and medical costs. f) For a
period of 36 months, insurance must cover any difficulties arising from the delivery of the
baby, including postpartum complications and even death8.
In addition, the surrogate mother has the choice to revoke her participation even right up until
the embryo is placed in her womb and should a need arise, even to terminate the pregnancy,
as per the Medical Termination of Pregnancy Act, 20199.
The intent behind this legislation was to safeguard the interests of women and children, it has
faced significant criticism. The prohibition of commercial surrogacy, for instance, has been
viewed as an infringement on the right of women to earn a living through surrogacy services.
Commercial surrogacy had previously provided an economic lifeline for many women,
particularly those from economically disadvantaged backgrounds. The act's exclusion of
single individuals and gay couples from surrogacy options is also seen as discriminatory,
violating their right to reproductive autonomy and equality.
The act imposes several restrictions on surrogacy, including the requirement that surrogacy
can only be undertaken by a close relative of the intending couple. This limitation has raised
concerns about potential coercion and exploitation within families, as women may be
pressured into acting as surrogates due to familial obligations. Additionally, the act requires
surrogate mothers to be married and have at least one child of their own, further narrowing
the pool of potential surrogates and potentially exacerbating the challenges for couples
seeking surrogacy.
LEGAL AND ETHICAL CRITICISM
The legal implications of the Surrogacy Regulation Act 2021 are far-reaching. This act
objectifies the security of the rights of the children born from the surrogate mother. This act
also guarantees the protection of the surrogate mother. It prohibits the practice of
commercialization of the child (explain positive implications). One of the most significant
legal challenges relates to the potential violation of constitutional rights10. Critics argue that
the Surrogacy Regulation Act violates Articles 21, Article 19, and Article14 of the Indian
Constitution11, which guarantee the right to life, the right to profession, and the right to
equality, respectively. The blanket ban on commercial surrogacy is seen as an infringement
on women's right to livelihood, particularly for those who relied on surrogacy as a means of
economic survival.
Article 21, which guarantees the right to life, has been interpreted by the Supreme Court of
India to include the right to reproductive autonomy. In the landmark case of Suchita
Srivastava vs. Chandigarh Administration (2009)12, the court recognized that reproductive
rights are an essential aspect of the right to life13. The court held that women have the right to
make decisions about their reproductive health, including the choice of contraception,
abortion, and sterilization. However, the Surrogacy Regulation Act 2021 imposes significant
restrictions on women's reproductive choices, particularly by prohibiting commercial
surrogacy and limiting surrogacy services to married couples.
Article 19, which guarantees the right to profession, is also implicated by the Surrogacy
Regulation Act 202114. Commercial surrogacy was a means of livelihood for many poor and
marginalized women in India. The act's prohibition of commercial surrogacy restricts these
women from earning a living through surrogacy services, thereby infringing on their right to
profession. The State cannot impose an absolute restriction on the practice of surrogacy or
ART procedure.15 In place of imposing absolute restriction on surrogacy, State can bring such
laws, rules and regulations, which can protect the surrogate mother from exploitation and at
the same time, regulate the practice of commercial surrogacy. This restriction also affects
surrogacy clinics, which relied on commercial surrogacy as a source of income.
Commercial surrogacy is bread and butter for not only surrogate mothers but also for
numerous clinics and doctors who are involved in surrogacy. In Chintaman Rao v. State of
M.P.,16the court held that the restriction imposed on a person’s enjoyment of the right should
not be of excessive nature beyond what is required in the interest of the public. A blanket ban
on commercial surrogacy, which harms the interests of numerous stakeholders of this
multibillion-dollar industry, cannot be justified and is excessive of what is required.17
Article 14, which guarantees equality before the law, is violated by the exclusion of single
individuals, unmarried couples, and gay couples from surrogacy services18. The act's
limitation of altruistic surrogacy to married Indian couples discriminates against these groups
based on their marital status and sexual orientation.
By restricting surrogacy only to married couples, the Bill reinforces the majoritarian Indian
morality that condemns the idea of live-in relationship and homosexuality. It suppresses the
rights and freedom of these sections of society. Here, it is important to note that in India, live
in relationships and homosexuality are not illegal anymore and limiting the access of
altruistic surrogacy is a clear indication of discrimination against these sections of society.
The ban19 runs counter to the idea of Hindu Marriage Act, 1955 and Juvenile Justice Act,
2015 that allow a single person to adopt a child while this Bill bans surrogacy for the singles.
On one hand, the law is permitting single persons to adopt a child while on the other, it is
restricting the single persons from adopting the method of surrogacy. In addition, under
Central Adoption Resource Authority (“CARA”)20, the foreigners are allowed to adopt a child
while this Bill bans the foreigners from employing the means of surrogacy
Ethically, the Surrogacy Regulation Act has been criticized for failing to balance the need for
regulation with the rights and autonomy of individuals involved in surrogacy arrangements.
The act's requirement that surrogacy can only be undertaken by a close relative could lead to
ethical dilemmas, as women may feel obligated to act as surrogates due to familial pressures.
Furthermore, the lack of clarity regarding the surrogate mother's right to withdraw consent
during pregnancy raises significant ethical concerns about bodily autonomy and informed
consent.
CASE LAW ANALYSIS
The legal challenges and ethical dilemmas associated with the Surrogacy Regulation Act
2021 and the Assisted Reproductive Technology Act 2021 are illustrated by several landmark
cases in Indian jurisprudence. One notable case is Baby Manji Yamada v. Union of India21,
which highlighted the potential for exploitation in surrogacy arrangements. In this case, a
legal dispute arose when a surrogate mother refused to relinquish the child to the intending
parents, resulting in a prolonged legal battle. The Supreme Court ultimately granted custody
to the child's grandparents, but the case underscored the complexities and ethical challenges
associated with surrogacy.
Another significant case is Suchita Srivastava vs. Chandigarh Administration (2009), 22in
which the Supreme Court recognized that reproductive rights are an essential aspect of the
right to life under Article 21 of the Constitution. The court held that women have the right to
make decisions about their reproductive health, including choices related to contraception,
abortion, and sterilization. This case set a precedent for recognizing reproductive autonomy
as a fundamental right, which is potentially compromised by the restrictive provisions of the
Surrogacy Regulation Act.
In Nikhil D. Datar vs. Union of India (2015)23, the Supreme Court further reinforced the
right to life and dignity, holding that individuals have the right to make choices about their
medical treatment, including the withdrawal of life support. This case has implications for the
regulation of ART practices, as it underscores the importance of respecting individual
autonomy and informed consent in medical decisions.
DISCUSSION
The Surrogacy Regulation Act 2021 represent significant legislative developments aimed at
regulating surrogacy practices in India. However, the restrictive nature of these laws has
sparked considerable debate about their potential impact on women's reproductive rights and
autonomy. While the act was introduced with the intention of protecting women from
exploitation, their provision have raised concerns about the infringement of constitutional
rights and the exclusion of certain groups from accessing surrogacy services.
The prohibition of commercial surrogacy, in particular, has been criticized for limiting
women's economic opportunities and infringing on their right to livelihood. The exclusion of
single individuals and gay couples from surrogacy services also raises concerns about
discrimination and inequality, potentially violating the right to equality guaranteed by Article
14 of the Constitution. Furthermore, the ethical implications of the Surrogacy Regulation Act,
particularly the potential for coercion and exploitation within families, highlight the need for
a more nuanced approach to surrogacy regulation.
CONCLUSION
The Surrogacy Regulation Act 2021 was enacted with the intention of safeguarding women's
reproductive rights and preventing exploitation in surrogacy. However, this law has faced
significant criticism for their restrictive provisions and potential infringement on individual
rights. The prohibition of commercial surrogacy and the exclusion of certain groups from
surrogacy services have raised concerns about the infringement of constitutional rights,
particularly the right to livelihood, reproductive autonomy, and equality. A more nuanced and
inclusive regulatory framework is necessary to protect the rights and autonomy of all parties
involved in surrogacy arrangements while preventing.
In conclusion, while the Surrogacy Regulation Act 2021 represent important steps towards
regulating surrogacy in India, its restrictive nature and potential infringement on individual
rights call for a reconsideration of its provisions. A more balanced and inclusive approach to
surrogacy regulation is essential to ensure that the rights and autonomy of all individuals are
respected and protected.
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