Surrogacy In India And USA - A Comparative Study
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Category: General Law
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SURROGACY IN INDIA AND USA: A COMPARATIVE
STUDY
Payal Ramesh Wayal, B.A. LL.B. (Hons), LLM (Constitutional Law), Maharashtra National Law University Chhatrapati Sambhajinagar (Aurangabad)
ABSTRACT
A type of assisted reproductive technology known as surrogacy, or ART, has
become a vital route to parenting for "individuals and couples who are unable to conceive". Nonetheless, the process brings up a variety of moral, legal, and societal concerns that vary widely among nations. The comparative examination in this paper focuses on the development, regulation, and sociolegal implications of surrogacy legislation in the US and India. Surrogacy in India has changed from a commercial practice with loose laws to a more rigorous and ethically regulated sector. The United States, on the other hand, has a fragmented legal system with rules that vary greatly between states due to its federal structure. By examining historical trends, important court decisions, and current legislative proposals, the study seeks to understand how legal regimes balance concerns about exploitation, commoditization, and motherhood with individual reproductive rights.
A uniform legal and moral framework that protects the rights of intended parents and surrogate mothers alike is necessary, according to the paper, which also examines the rising desire for moral regulation in both nations. Keywords: Reproductive rights, conceive, commercial, parentage
INTRODUCTION
Surrogacy has become a game-changing advancement in reproductive medicine, providing individuals and couples facing infertility with hope and a workable alternative. Surrogacy, which is defined as ‘a contract in which a woman agrees to bear and birth a child on behalf of another individual or couple, has completely changed how people think about family and motherhood’. Although it has ethical, societal, and legal issues, surrogacy is today a commonly accepted type of assisted reproduction. The term comes from the Latin word "surrogatus," which means ‘a substitute or a person assigned to act on behalf of another. ’ The necessity for precise legal structures to regulate surrogacy arrangements has arisen due to the practice's globalization, particularly in nations like the US and India.
After commercial surrogacy became legal in India in 2002, the nation became known as a center for "reproductive tourism. " Couples from all over the world were drawn in by the availability of affordable medical treatment, cutting-edge technologies, and willing surrogate mothers. However, at first, worries about exploitation, surrogate mother rights, and parental issues arose due to the lack of robust legal protections. The 2008 Baby Manji Yamada case raised awareness of the problem and prompted more legislative investigation and regulatory changes. In contrast, surrogacy is subject to state-level regulations in the United States, which creates a complicated legal environment. While some states forbid or do not legally recognize surrogacy arrangements, others have comprehensive legislation protecting all parties involved that make them surrogacy-friendly.
The legal and emotional complications involved were brought to light by the historic Baby M case in the 1980s, which prompted different states to take different legislative stances. In contrast to India, the United States' decentralized structure permits a wider range of legal models, but it also leads to misunderstandings and inconsistencies. Despite their different journeys, India and the US are facing comparable moral and societal issues related to surrogacy: Who is entitled to parenthood? What safeguards ought to be in place for surrogate mothers? How do international agreements handle citizenship and parental issues? These issues are at the heart of the surrogacy controversy and highlight the necessity for unified legislation that upholds both social norms and individual liberties.
The purpose of this essay is to outline the development of surrogacy legislation in both nations, point out significant moral and legal issues, and make recommendations for a fair, rights-based
strategy. This study aims to add to the current discussion on surrogacy from a comparative legal viewpoint by contrasting the legislative frameworks, significant court rulings, and policy changes in India and the US.
MEANING OF SURROGACY
Surrogacy is derived from the Latin word "surrogatus", which means ‘a person appointed to act in place of another person.’ “Surrogacy is the process of carrying and delivering a child to the biological mother. Surrogacy is an assisted reproduction technique in which a woman consents to have and birth a child on behalf of another person or couple, usually known as the intended parents.” It provides a viable pathway to parenthood for those who are unable to conceive or carry a pregnancy due to medical, biological, or social reasons. A woman who is unable to become a mother naturally or who prefers to use surrogacy
deliberately selects another healthy and fit woman to carry the child inside her for nine months before giving birth and transferring the child to the biological parents. A woman consents to getting pregnant with this kind of assisted reproduction in order to give birth to a kid who will be reared by others. The use of surrogates has begun to become commonplace. People did not know what surrogacy was four or five years ago, and they were shocked that medical science had progressed to the point where such a thing even existed. Traditional and gestational surrogacy are the two main categories. The surrogate mother in traditional surrogacy is genetically linked to the child because her own egg is used for conception, typically through artificial insemination. ‘The surrogate has no genetic ties to the child in gestational surrogacy, which is more prevalent these days.
Instead, an embryo made by in vitro fertilization (IVF) using the intended parents' or donors' egg and/or sperm is deposited in the surrogate's uterus. ’ There are two other types of surrogacy: commercial and charitable arrangements. Altruistic surrogacy entails no financial compensation other than the repayment of medical costs, while commercial surrogacy involves cash compensation in addition to medical and related expenses. The concept of surrogacy raises various legal, ethical, and emotional issues related to consent, parental rights, bodily autonomy, and the welfare of the child and surrogate. Because of this, different jurisdictions have very different laws governing it, which reflects different moral, legal, and cultural viewpoints on reproduction and family structure. Through the process of
surrogacy, a woman who is unable to conceive now has many possibilities for experiencing parenthood.
EVOLUTION OF SURROGACY
The stories about surrogacy in Hindu mythology show the ongoing secrecy surrounding the practice. In the Mahabharata, Maharishi Bhardwaj witnessed a divine nymph emerge from the water after taking a bath. He felt discerned upon seeing such a lovely woman and placed his sperm in the Darona, a yagna pot. Dronacharya, who was given the vessel's name at birth, was born here. Thousands of years after the events of 599 AD in the Bible, an embryo was transferred from one woman's womb to another, leading to the birth of the 24th Tirthankara, Mahavira. He is among the most important characters in Jain mythology. He was conceived by Devananda, the wife of Rishabhadeva, a Brahmin. The embryo was cleverly moved to Trishala's womb by the gods.
1 The basic and initial roots of surrogacy were first introduced in Egypt, where it was believed that if a woman could not have a child, then she might undertake different practices of giving this option to another woman to bear the biological child of her husband for the purpose of saving their marriage. This process was not prevalent in common places but was an act and not an offense under the eyes of the law. 2 The "Book of Genesis" contains the earliest known mention of surrogacy. The married couple, Abraham and Sarah,3 were unable to conceive on their own, so the infertile Sarah gave her husband her servant Hagar to be the mother of his kid. Sarah and Abraham were considered the child's parents, even though Hagar was involved in the birth. 4 In 1976, attorney Noel Keane handled the first surrogacy agreement in history.
The surrogate was not compensated for bearing the child in this traditional surrogacy. Keane used this knowledge to establish the Infertility Centre, which would help hundreds of surrogate
1 SURROGACY, https://surrogacy.ru/en/surrogacy/surrogacy_history/ (last visited on 2nd March, 2025).
2 Dev P Bhardwaj, Surrogacy in India, Legal Service Journal(2018).
3 Genesis 1:1 (King James Bible).
4 Ibid
pregnancies annually and contribute significantly to the history of surrogacy in the US. 5 The first surrogacy in which the birth mother was compensated was the case of Elizabeth Kane in the year 1980. She was paid 0,000 to give birth for another couple. She was unprepared for the hardships she faced after giving birth to the infant, despite the fact that she had already finished her family and given a child up for adoption. She ultimately came to regret her choice, as she detailed in the book "Birth Mother. "6 In India, the year 2002 was marked by the recognition and legalization of commercial surrogacy, resulting in significant growth. As a result, a number of commercial companies began to specialize in surrogacy legislation and assist foreigners seeking to use Indian women as surrogate mothers.
This made it possible for foreign businesses to open multiple branches in India and diversify internationally by helping them with the required surrogacy contracts and documentation, as well as helping them obtain a passport and visa so the child could leave the country easily. According to the “228th Law Commission Report”, India believes that commercial surrogacy should be prohibited. ‘The Indian Council of Medical Research (ICMR)’ has released certain information to regulate surrogacy arrangements. The guidelines mentioned what entitlement a surrogate mother possesses, i. e. , in the form of monetary compensation. A contract that is agreed upon in advance by the surrogate mother and the husband and wife will be signed by the surrogate mother.
However, the initial legal vacuum led to ethical concerns, particularly around exploitation, lack of informed consent, and legal recognition of parentage. The Baby Manji Yamada case highlighted these issues, leading to the eventual push for a more regulated framework. ‘The Indian Council of Medical Research’ issued guidelines, and draft bills such as the ‘Assisted Reproductive Technology (Regulation) Bill, 2013,’ and later the Surrogacy (Regulation) Bill, 2016, attempted to formalize and restrict surrogacy practices. India formally outlawed commercial surrogacy by 2021, permitting only altruistic surrogacy for Indian couples under very specific guidelines. 5 Gyanchandani, P. (2023). Surrogacy: A Comparative Analysis between India and US, 2022. In International Journal of Legal Science and Innovation, International Journal of Legal Science and Innovation (Vol. 5, Issue 5, pp. 29–39).
https://www. ijlsi. com/
6 Ibid
Meanwhile, the evolution of surrogacy in the United States has followed a decentralized path. Following the Baby M case in 1986, where a traditional surrogate refused to relinquish the child, legal clarity became essential. States like California embraced surrogacy with enforceable contracts, while others like Michigan imposed strict bans. Over time, states developed varying approaches—ranging from prohibition to contractual enforcement— creating a patchwork of surrogacy laws across the country. Today, the evolution of surrogacy reflects a growing awareness of the need to protect all stakeholders—intended parents, surrogate mothers, and the child. Whether in India’s shift from commercial to altruistic surrogacy or the U.S.'s state-wise approach, the law continues to evolve in response to new ethical, medical, and legal challenges in reproductive technology.
COMPARATIVE ANALYSIS
1. Unites States of America7
In the United States, surrogacy has always been governed by state laws. There is no federal legislation on surrogacy; instead, the legal status of surrogacy varies by state. States like California have long recognized and enforced both gestational and traditional surrogacy contracts, particularly following the landmark decision in Johnson v. Calvert. 8 Some state legislatures passed laws banning surrogacy after the infamous Baby M case in the late 1980s in an effort to prevent a recurrence of that type of situation. A "traditional surrogate" in the Baby M case chose to violate her surrogacy agreement and fight for the custody of the genetically related child she had borne. The United States has a wide range of surrogacy laws due to the implications of having a federal framework, but generally speaking, they appear to have favored a laissez-faire approach to surrogacy regulation.
This section discusses the characteristics of American laws relating to ART and surrogacy. There isn't a formal national surrogacy policy in the US. A patchwork of state laws categorized into four primary legal policy areas govern surrogacy in the United States. 1) Prohibition 2) Inaction 3) Contractual ordering and status regulation. The law governing surrogacy in the USA is quite intricate because it varies by state. The rules governing surrogate motherhood vary from
7 Shivani Sethi, A Comparative Study of Surrogacy Laws in India and U.S, Law Times Journal (2020).
8 Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
state to state in the US. While it is allowed in some states, surrogacy is illegal in others. States are able to pass surrogacy legislation because the United States is a federal country. Significant legislation could be based on the commerce clause, substantive due process, or the idea that the right to surrogacy is a part of the freedom to procreate, according to the US Supreme Court. ‘The American Bar Association Model Act Governing Assisted Reproductive Technology, 2008’, which supports the argument for uniform law, is the only significant surrogacy statute in the US. Court-approved surrogacy contracts with legally enforceable provisions that create predetermined legal connections are among the comprehensive regulations that some states have implemented to recognize and regulate surrogacy.
2. India9
In India, commercial surrogacy is permitted. Although the ‘Indian Council of Medical Research (ICMR)’ has established "National Guidelines" to regulate surrogacy, they are merely guidelines and there is currently no legislation in India that regulates surrogacy. This indicates that a "contract" must be signed by the surrogate mom and the childless pair. Furthermore, there are no provisions stating the consequences of breach of contract. It is questionable if these contracts can be enforced.10 According to Section
2311 of the Indian Contract Act, 1872, a surrogate contract in India may be declared null
and void on the grounds that it is unethical or against public policy. Furthermore, the concept of surrogacy has been integrated into Indian culture as a way for foreign couples to travel and transact business. Compared to wealthy countries like the United States and the United Kingdom, they pay significantly less. There is no paperwork required, the spouses don't have to go through attorneys, and there is no litigation because it is a clean issue. The moral and ethical undertones on which public policy considerations are based must essentially color the legal perspective on surrogacy. It is crucial to outline the main ethical difficulties involved in this situation because the courts will need to deal with it. “The Draft Assisted Reproductive Technology Regulation Bill and Rules (2013) seeks to regulate an "industry" that has been rapidly
9 Ibid
10 Ranjana Kumari, Surrogate Motherhood-Ethical or Commercial, Centre For Social Research,(2020).
11 The Indian Contract Act, 1872, Section 23.
increasing in India, largely as a result of an increase in demand from international couples looking for surrogacy arrangements that are reasonably priced. ” This changed with the enactment of the ‘Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022’. The Act bans commercial surrogacy and legalizes only altruistic surrogacy, limiting eligibility to Indian married couples who have been married for at least five years and are medically certified as infertile. 12 Single individuals, LGBTQ+ persons, and foreign nationals are explicitly excluded under the Act. Legal remedies include criminal penalties for engaging in prohibited surrogacy practices, such as fines up to ₹10 lakh and imprisonment up to 10 years for violations.
13 Disputes over custody, consent, or parentage are addressed under existing family laws like the Guardians and Wards Act, 1890, and adjudicated in family courts. The Act also established National and State Surrogacy Boards to oversee the implementation and licensing process. 14 Cases
1) Baby Yamji Mada v. Union of India15
Baby Manji Yamada was conceived by a Japanese couple via an Indian surrogate mother, but the couple divorced before the kid was even a month old, placing the child's future in doubt. Ikufumi Yamada, the child's biological father, tried to bring the child to Japan, but the Japanese government and legal system forbade it. The child and her grandma were eventually granted permission to leave the country after the Supreme Court of India had to intervene. The Baby Manji Yamada decision had the biggest impact since it led to the Indian government passing regulations regulating surrogacy. In 2008, the Supreme Court of India ruled that surrogacy was acceptable in India following the Manji case. This choice gave foreigners more reason to choose India as their surrogacy destination.16
12 Surrogacy (Regulation) Act, No. 47 of 2021, Section 2(r).
13 Surrogacy (Regulation) Act, No. 47 of 2021, Section 41.
14 Surrogacy (Regulation) Act, No. 47 of 2021, Section 17-19.
15 Baby Manji Yamada v. Union of India & Another, (2009) 13 SCC 518.
16 Sanskar Garg, A Study on Surrogacy: Issues and Perspectives in Indian Scenario, LEXPEEPS,
https://lexpeeps.in/a-study-on-surrogacy-issues-and-perspectives-in-indian-scenario/. (last accessed on 3rd March, 2025)
2) Jan Balazz v. Anand Municipality17
In this instance, the Gujarat High Court ruled that the surrogate mother had to deliver the child to the German couple who had requested the assistance of an Indian surrogate mother in order for the child to receive an Indian passport, which verifies his citizenship, and for the surrogate mother's name to appear on the birth certificate rather than the biological mother's. The Supreme Court, which is now reviewing an appeal against this decision, recognized the urgency of addressing the matter during the hearing, allowing Parliament to introduce the proposed law. A bill that forbids foreigners from looking for Indian moms for surrogacy has been passed as a result of the scholarly interest generated by all of these cases.
According to a letter from the ICMR given to all clinics in India on September 28, 2015, the ban is already in place and instructs them not to assist foreign couples who wish to become parents by using an Indian surrogate mother.
ISSUES AND CHALLENGES IN SURROGACY REGULATION
Both India and the United States face significant legal, ethical, and social challenges in regulating surrogacy. Potential abuse of economically disadvantaged women has been a big concern in India, particularly during the previous commercial surrogacy regime. Despite the shift to altruistic surrogacy, critics argue that the new Surrogacy (Regulation) Act is overly restrictive, excludes several categories of intending parents, and lacks adequate mechanisms to ensure informed consent and long-term welfare of the surrogate mother. Furthermore, the ban on commercial surrogacy has pushed some arrangements underground, creating scope for unregulated and potentially unsafe practices. Additionally, there is a lack of clarity on custody and parentage issues in the event of disputes, especially in cases involving cross-border surrogacy.
The stringent clauses of the 2021 Act have created legal confusion for foreign nationals who previously sought surrogacy services in India. Additionally, the exclusion of LGBTQ+ individuals and single parents raises questions
17 Jan Balazz v. Anand Municipality, AIR 2010 GUJ 21.
about discrimination and violation of fundamental rights under Articles 14 and 21 of the Indian Constitution. In the United States, the decentralized approach has led to a fragmented and inconsistent legal landscape. Cross-state surrogacy agreements frequently provide legal challenges for intended parents. States with no surrogacy statutes leave parties vulnerable to disputes with no clear legal recourse. In states where surrogacy is prohibited or contracts are unenforceable, individuals may be criminally penalized, thereby deterring even ethical arrangements. There are also concerns about commercialization, particularly in states where commercial surrogacy is permitted. The absence of federal oversight means that issues related to standardization of medical care, contract enforcement, surrogate screening, and post-birth support are inadequately addressed in some jurisdictions.
Additionally, the ethical debate around commodification of the female body and the child's welfare remains unresolved. In both jurisdictions, another key challenge lies in ensuring proper legal recognition of parentage in international surrogacy cases, particularly in matters of citizenship and adoption. As surrogacy arrangements often involve transnational actors, inconsistencies between jurisdictions can lead to statelessness or legal limbo for the child. Therefore, even though surrogacy provides many people with a route to parenting, the legal frameworks in the US and India highlight intricate conflicts between individual liberty, moral principles, and legal clarity. Continued reforms, public awareness, and judicial engagement will be essential to addressing these evolving challenges.
CONCLUSION
One of the most intricate nexus of ethics, law, and reproductive technologies in the contemporary world is surrogacy. Although it has made parenthood a joyful experience for thousands of people and couples, it has also brought up important issues like legal parentage, exploitation, consent, and commercialization. The comparison between the United States and India shows how socioeconomic realities, political systems, and cultural values influence the evolution and regulation of surrogacy activities. From permissive commercial partnerships to restricted altruistic models, surrogacy laws in India have evolved. International pressure to control cross-border reproductive services, legal
ambiguities concerning citizenship and paternity, and growing worries about the exploitation of economically needy women were the main drivers of this change. The state's intention to put moral considerations ahead of profit-driven goals is reflected in the Surrogacy (Regulation) Act, 2021. The new rule, according to critics, may be unduly restrictive and fails to sufficiently take into consideration the interests of international couples, single parents, and LGBTQ+ people. Issues with awareness, social stigma, and enforcement still plague its adoption. On the other hand, states are free to create their own surrogacy laws because the US has not taken a unified national stance. As a result, the legal environment is now divided, with some governments actively encouraging and facilitating surrogacy through contracts, while others discourage or outright forbid it.
For intended parents, the U. S. approach offers greater choice, but it also adds complexity and ambiguity, particularly when it comes to cross-state and international agreements. The examples of Johnson v. Calvert and Baby M show how the courts have struggled to define paternity and whether surrogacy agreements are enforceable. Despite their variations, both systems acknowledge the importance of safeguarding intended parents' and surrogate mothers' interests. The fundamental ethical issues are still very much the same: how to provide clarity in legal parenting, prevent coercion, ensure informed consent, and protect the child's welfare. When properly controlled, surrogacy agreements can be a kind and fair way to deal with infertility. Nonetheless, the lack of uniform, rights-based legal frameworks may result in discrimination, exploitation, and psychological suffering for all concerned.
Therefore, finding a balance between a person's reproductive autonomy and society's ethical obligation is crucial for the development of surrogacy law. It is imperative for policymakers to guarantee that legal frameworks are transparent, inclusive, and flexible enough to accommodate changing social and technological realities. To create a surrogacy system that is fair, compassionate, and consistent with the values of equality and dignity, international cooperation, judicial action, and educated public discussion will be crucial. In order to safeguard not only the right to parenting but also the rights of those who enable it, the law must advance in tandem with science as it pushes the boundaries of human reproduction.