Reassessing The Influence Of The Surrogacy (Regulation Act), 2021 On The Rights Of Surrogate Mothers In India

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:50:35.472191+00:00

Updated: 2026-08-26T17:09:55.111+00:00

REASSESSING THE INFLUENCE OF THE SURROGACY

(REGULATION ACT), 2021 ON THE RIGHTS OF

SURROGATE MOTHERS IN INDIA

Amita Chaudhry, LL.M., Gujarat National Law University, Gandhinagar

ABSTRACT

The modern society needs modern laws to regulate it. Modern legal systems has already adopted modern legal concepts to regulate the new concept of surrogacy while India has adopted the same in the year 2021. The Surrogacy Regulation Act, 2021, represents a significant legislative effort by the Indian government to govern the practice of surrogacy within the country. Surrogacy, which is a biological concept is given by the technology to the humans, as a reproductive technology, allows individuals or couples who are unable to conceive to utilize another woman’s gestational services to bear their child. While surrogacy offers hope to many, it has also been fraught with ethical, legal, and social dilemmas, particularly concerning the rights and welfare of surrogate mothers.

This paper aims to explore the implications of the Surrogacy Regulation Act, 2021, on the rights of surrogate mothers in India. It will discuss the regulatory framework established by the Act, analyze the rights afforded to surrogate mothers, and critique the potential impact of these regulations on their autonomy, agency, and overall safety. Researcher will conclude the same with overall analysis of this Act. Keywords: Surrogacy, women, child, reproduction, rights.

INTRODUCTION

The intricate interplay of reproductive technology and legal frameworks has become a salient area of discourse in contemporary society, particularly in the context of India. As surrogacy continues to garner attention on both national and international platforms, the need for robust regulation to safeguard the rights of all parties involved has emerged as an urgent imperative. The Surrogacy Regulation Act, 2021 ("the Act") was introduced with the intent to govern the practice of surrogacy, ensuring the protection of all parties involved, particularly surrogate mothers. 1 This legislation has profound implications for the rights of surrogate mothers, who often find themselves at the intersection of economic necessity and social stigma.

Surrogacy, as a reproductive arrangement, holds profound implications for the lives of surrogate mothers, who frequently encounter legal, social, and economic challenges in their engagement with this practice. Traditionally viewed as bearers of children on behalf of intended parents, surrogate mothers in India have often operated within a gray legal landscape, leading to discussions of exploitation, informed consent, and the commodification of reproductive labor. The introduction of the Surrogacy Regulation Act seeks to remedy these shortcomings by establishing a comprehensive legal framework designed to protect surrogate mothers and ensure their rights are upheld throughout the surrogacy process.

Notably, the Act delineates critical provisions regarding the eligibility criteria for surrogate mothers, the nature of agreements to be executed, and the medical and psychological safeguards to be implemented. However, this legislation has also been met with a tapestry of reactions, ranging from commendation for its progressive approach to criticism concerning its potential shortcomings and gaps. This duality in reception underscores the complex sociocultural dynamics inherent in surrogacy practices in India, where traditional norms intersect with modern reproductive technologies. In examining the impact of the Surrogacy Regulation Act, 2021 on the rights of surrogate mothers, it is imperative to explore not only the provisions of the Act itself but also the broader socio-legal context within which these women operate.

This exploration necessitates an analysis of various facets, including the definition of consent, the economic implications of surrogacy agreements, and the role of health care providers and agencies in facilitating these

1 Surrogacy Regulation Act, 2021, No. 51 of 2021, Acts of Parliament, (India).

arrangements. Moreover, it is essential to investigate the perspectives of surrogate mothers themselves, ensuring that their voices and experiences inform the assessment of the Act’s effectiveness and its real-world implications on their rights and dignity.2 This research paper seeks to critically analyze the impact of the Surrogacy Regulation Act,

2021 on the rights of surrogate mothers in India. By examining the legal provisions of the Act,

its implications for surrogate mothers' autonomy, their economic rights, and the broader sociocultural context in which they operate, the study aims to elucidate the complexities surrounding surrogacy in India. Through this discourse, we endeavor to ascertain whether the Act constitutes a progressive step towards the protection and empowerment of surrogate mothers or whether it unintentionally perpetuates existing inequalities within the surrogacy framework. Ultimately, this inquiry aims to contribute to the larger discourse on reproductive rights and the quest for equitable treatment of all individuals involved in surrogacy arrangements.

HISTORICAL CONTEXT OF SURROGACY IN INDIA

Surrogacy, the practice wherein a woman carries and delivers a child for another individual or couple, has evolved significantly in India, influenced by various socio-cultural, legal, and economic factors. Understanding the historical context of surrogacy in India requires an examination of societal attitudes toward reproduction, the evolution of reproductive technologies, the legal framework surrounding surrogacy, and the implications of globalization. This essay traces the trajectory of surrogacy in India, highlighting key developments from ancient practices to contemporary legal challenges. Ancient Practices and Cultural Attitudes India has a rich tapestry of cultural beliefs regarding fertility and reproduction. Traditionally, procreation has been imbued with profound social meaning, often associated with lineage continuation and familial duty.

In ancient texts, various reproductive strategies, including adoption and the use of concubines, were employed to address issues of infertility. The concept of a surrogate, while not formally defined, existed in cultural narratives, as seen in mythological texts where divine intervention often assisted in conception. The Ramayana, for instance, recounts the story of Lord Rama and his plight for heirs, which ultimately leads to

2 V. Gupta, Commercial Surrogacy and Women’s Rights: An Indian Perspective, 12 IJLE, 45-67 (2021).

the involvement of the sage Vishwamitra's blessings for offspring through unconventional means. This illustrates an underlying acceptance of surrogate-like arrangements in ancient India, albeit within a mythological context. Emergence of Modern Reproductive Technologies The landscape of surrogacy in India began to transform significantly in the latter half of the 20th century with advancements in reproductive technologies. The advent of in vitro fertilization (IVF) in the 1970s and 1980s revolutionized assisted reproductive techniques, thereby enabling individuals and couples facing infertility issues to conceive children in ways that were previously unimaginable. The first successful IVF baby was born in 1978 in the United Kingdom, a milestone that sparked interest in reproductive technologies worldwide, including in India.

India became a significant player in the global reproductive tourism industry by the turn of the 21st century, as couples from around the world sought the services of Indian clinics offering fertility treatments, including surrogacy. This trend can be attributed to several factors: the relatively lower costs of medical procedures in India compared to Western countries, the availability of advanced medical technologies, and a legal environment that, at that time, was perceived to be permissive. Legal Framework and Ethical Considerations The legal context of surrogacy in India began to formalize in the 2000s. In 2002, the Indian Council of Medical Research (ICMR) issued guidelines for assisted reproductive technology practices, which included provisions for surrogacy.

These guidelines served as a foundational framework for surrogacy arrangements, aiming to provide ethical standards for clinics, intended parents, and surrogate mothers. 3 However, the lack of comprehensive legislation meant that many surrogacy agreements operated in a legal gray area, often leading to exploitative practices, particularly concerning the rights and welfare of surrogate mothers. 4 A notable case that underscored the complexities of surrogacy laws in India was that of Baby

3 Indian Council of Medical Research, “National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India,” 2002. 4 M. P. Singh, Surrogacy in India: An Overview of the Legal Framework, 15 Journal of Family Law, 108-120 (2021).

Manji Yamada in 2008. In this case, a Japanese couple commissioned a surrogate in India, but following the birth of the child, the marital status of the parents became a point of contention, raising questions regarding the nationality and custody of the child. The Indian Supreme Court ultimately ruled that the child would be granted Indian citizenship, thereby setting a precedent for future surrogacy cases. 5 This case highlighted the urgent need for a coherent legal framework that safeguarded the rights of all parties involved in surrogacy arrangements. The Surrogacy (Regulation) Bill 2020 In response to the growing concerns regarding the ethical implications and potential exploitation of surrogate mothers, the Indian government introduced the Surrogacy (Regulation) Bill in 2020.

This proposed legislation aimed to regulate surrogacy arrangements, defining the legal status of surrogates and ensuring informed consent while protecting the rights of surrogate mothers and the children born through these practices. 6 Among other stipulations, the bill sought to restrict commercial surrogacy, allowing only altruistic surrogacy, where surrogates would not receive monetary compensation beyond medical expenses. This pivotal move reflects a shift in governmental attitude towards surrogacy, emphasizing ethical considerations over economic incentives. However, the introduction of the bill has also sparked debates regarding its potential implications for intended parents, particularly same-sex couples and single individuals.

Critics argue that restricting access could drive surrogacy practices underground or lead to international surrogacy arrangements, thereby perpetuating exploitation and jeopardizing the welfare of surrogate mothers.

OBJECTIVES OF THE SURROGACY REGULATION ACT, 2021

The primary aims of the Surrogacy Regulation Act, 2021, are threefold: • to regulate the practice of surrogacy, • to prohibit commercial surrogacy, • and to protect the rights of surrogate mothers.

5 Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.

6 Surrogacy (Regulation) Bill, 2020, Government of India.

The Act's objectives reflect the government’s intention to create a more secure environment for surrogate mothers and to ensure ethical standards in surrogacy practices. The Act defines surrogacy, distinguishing between altruistic and commercial surrogacy. Under the new framework, altruistic surrogacy—where the surrogate mother is compensated only for medical expenses and insurance—is permitted while commercial surrogacy, which allows for payment above reimbursement of expenses, is prohibited.7 This prohibition seeks to eliminate the exploitation of surrogate mothers by preventing agencies from profiting from their reproductive labor.

RIGHTS OF SURROGATE MOTHERS UNDER THE ACT

Right to Autonomy and Informed Consent One of the fundamental rights that the Surrogacy Regulation Act, 2021, aims to protect is the autonomy of surrogate mothers. The Act mandates that surrogate mothers must give informed consent before entering into a surrogacy arrangement. This provision is crucial as it ensures that surrogate mothers are fully aware of the implications of their decision, including the medical risks, psychological impact, and legal ramifications associated with surrogacy. Informed consent is a significant aspect of medical ethics, and its incorporation into the surrogacy framework underscores the importance of agency for surrogate mothers. 8 However, questions remain regarding how informed consent is obtained and whether surrogate mothers have the capacity to exercise genuine choice in socio-economic contexts where financial pressures are prevalent.

Right to Compensation and Healthcare The Surrogacy Regulation Act emphasizes the right of surrogate mothers to receive compensation that is limited to medical expenses, insurance, and other related costs. While this is an improvement over previous practices that often led to financial exploitation, it raises concerns about the sufficiency of this compensation. Surrogacy is a complex undertaking that involves significant physical and emotional tolls, and the Act's framework may not adequately 7 R. S. Sardana, Legal Regulation of Surrogacy in India: Need for Comprehensive Law, 62 Journal of Indian Law Institute, 334-355 (2020).

8 S. Sharma, Surrogacy in India: Socio-Legal Perspectives, 28 IJGS, 175-194 (2021).

address the needs of surrogate mothers in this regard. Moreover, the Act requires surrogate mothers to undergo medical examinations and receive adequate healthcare throughout the process. This provision is essential for ensuring the health and safety of surrogate mothers as well as the welfare of the child being carried. 9 However, the practical implementation of these requirements remains to be seen, especially in rural areas where medical infrastructure may be lacking. Right to Privacy and Confidentiality Another essential component of the Act is the protection of the privacy and confidentiality of surrogate mothers. The Act lays down provisions to safeguard the personal information of surrogate mothers, thereby ensuring that they are not stigmatized or marginalized due to their surrogacy status.

This is particularly important in a society like India, where traditional norms may lead to societal judgment against women who choose to become surrogates. While the intention behind these privacy provisions is commendable, the effectiveness of such measures will depend on the extent to which they are enforced and the awareness of surrogate mothers regarding their rights. Ensuring confidentiality is critical, especially considering the potential for discrimination and social ostracization. Right to Legal Recourse The Surrogacy Regulation Act 2021 also introduces mechanisms for surrogate mothers to seek legal recourse in case of violations of their rights. The establishment of a regulatory authority is intended to oversee surrogacy arrangements and address grievances that may arise.

This development is vital for providing a formal pathway for surrogate mothers to voice their concerns and seek justice. However, the success of this framework will depend on the mechanisms' accessibility and effectiveness. Legal recourse may not be readily available or practical for many surrogate mothers, particularly those from marginalized communities. Furthermore, the awareness and understanding of legal rights play a crucial role in empowering surrogate mothers to utilize

9 K. Florence, Surrogacy in India: Ethically Complicated and Socially Divided, 6 IJME, 85-90 (2021).

these protections.

IMPACT ON THE RIGHTS OF SURROGATE MOTHERS

The enactment of the Surrogacy Regulation Act, 2021, has significant implications for the rights of surrogate mothers. These implications can be examined through various lenses: Legal Recognition and Protection: The Act provides legal recognition of the surrogate mother's role and establishes rights that were previously unclear or non-existent. For instance, the explicit prohibition of commercial surrogacy aims to protect surrogate mothers from being treated as mere commodities. This legal framework signifies a stride towards recognizing surrogate mothers as individuals with rights and autonomy. Informed Consent and Autonomy: A crucial element of the Act is the emphasis on informed consent. The Act mandates that surrogate mothers must receive clear and comprehensive information regarding the surrogacy process, medical implications, and their rights.

This provision empowers surrogate mothers to make informed choices about their bodies and their involvement in surrogacy. Social Status and Stigmatization: Despite the legal advancements, surrogate mothers in India often face societal stigma and marginalization. The Act does not adequately address the broader societal attitudes that contribute to the social inequities faced by these women. Although the legislation aims to protect their rights legally, the entrenched cultural perceptions regarding their role and status may remain unchallenged. Health and Welfare Provisions: The Act emphasizes the health and welfare of surrogate mothers. By mandating that surrogate mothers receive adequate medical care throughout the pregnancy, the legislation acknowledges the health risks associated with surrogacy.

However, the implementation of such provisions may vary significantly across different states and healthcare settings, raising concerns about consistency and quality of care. Potential Economic Vulnerabilities: The prohibition of commercial surrogacy raises questions about economic compensation for surrogate mothers. While altruistic arrangements emphasize ethical considerations, many surrogate mothers may depend on the financial benefits associated with surrogacy to support their families. The Act’s provisions may inadvertently undermine the economic autonomy of surrogate mothers, as they may not receive

adequate remuneration for their contributions.

CHALLENGES AND CRITIQUES OF THE SURROGACY REGULATION ACT, 2021

Economic Vulnerability of Surrogate Mothers Despite the regulations established by the Surrogacy Regulation Act, 2021, economic vulnerability remains a significant concern. Many women enter into surrogacy arrangements out of financial necessity, often in contexts where they face limited economic opportunities. While the Act prohibits commercial surrogacy, it does not address the socio-economic factors that lead women to become surrogates in the first place10. The Act’s compensation model, which limits payments to medical expenses and insurance, may not provide enough financial support for surrogate mothers, particularly when considering the long-term impacts of pregnancy and childbirth on their health and prospects.

This raises questions about whether the Act genuinely protects the rights of surrogate mothers or merely shifts the burden of exploitation from commercial practices to the altruistic model that remains heavily tied to economic need. Implementation and Enforcement The regulatory authority established under the Act is tasked with overseeing surrogacy practices and ensuring compliance with legal standards. However, challenges related to implementation and enforcement persist. In many parts of India, bureaucratic inefficiencies, corruption, and lack of awareness can impede effective enforcement of the law. Moreover, the Act's provisions may not be uniformly enforced across the diverse socioeconomic landscape of India. Women in rural or underserved communities may not have access to the same protections or support as those in urban areas, leading to disparities in treatment and outcomes.

Ethical Considerations and Societal Norms The Surrogacy Regulation Act, 2021, may also encounter resistance rooted in societal norms 10 A. Desai, Economic Vulnerability of Surrogate Mothers in India, 55 Economic and Political Weekly, 49-56 (2020).

and ethical considerations. Surrogacy, even when altruistic, raises questions about the commodification of women’s bodies and reproductive labor. Critics argue that the Act does not sufficiently address the ethical implications of surrogacy and the potential for exploitation, even in a regulated environment. Furthermore, societal perceptions of surrogacy and the stigma attached to surrogate mothers may persist despite legal protections. This cultural context can have profound implications for the lived experiences of surrogate mothers, affecting their social standing, personal relationships, and overall well-being.

CONCLUSION

The Surrogacy Regulation Act, 2021, marks a pivotal moment in the regulation of surrogacy in India, particularly concerning the rights of surrogate mothers. The Act was primarily came into effect to address concerns about the misuse of surrogacy, particularly for commercial purposes, and to ensure the protection of the rights of women who act as surrogates as well as the children born through surrogacy. While the Act introduces several critical protections, including informed consent, healthcare access, privacy, and legal recourse, significant challenges remain. Economic vulnerability, implementation disparities, and ethical considerations continue to cloud the Act's potential impact on surrogate mothers. The Act prohibits commercial surrogacy, which means that surrogacy arrangements where the surrogate mother is paid beyond medical expenses and insurance are banned.

Only altruistic surrogacy is allowed, where the surrogate mother is not paid for her services beyond medical expenses. For the Surrogacy Regulation Act, 2021, to fulfill its promise of protecting and empowering surrogate mothers, a robust framework for implementation must be developed, along with targeted efforts to address the socio-economic factors that lead women to become surrogates. Advocacy, public awareness campaigns, and support systems for surrogate mothers will be crucial in ensuring that the regulatory framework translates into meaningful protections and empowerment for these women. Overall, while the Surrogacy Regulation Act, 2021, lays the foundational principles for governing surrogacy in India and reflects India's effort to modernize surrogacy laws, protect

women from exploitation, and regulate the process to avoid misuse while ensuring that the rights of children born through surrogacy are preserved. The act is imperative for stakeholders, including the government, civil society, and the medical community, to work collaboratively to safeguard the rights and welfare of surrogate mothers. Only then can the Act be genuinely transformative and foster a culture of respect, dignity, and support for all women involved in reproductive practices.