Surrogacy (Regulation) Act, 2021 - A Critical Analysis Of The Act And Its Implications

Author: LawSphereX

Category: General Law

Published: 2026-08-23T21:11:02.489971+00:00

Updated: 2026-08-26T17:06:08.044+00:00

SURROGACY (REGULATION) ACT, 2021: A CRITICAL

ANALYSIS OF THE ACT AND ITS IMPLICATIONS

Shathvikka Senthilkumar, CHRIST (Deemed to be University)

ABSTRACT

This paper aims to examine the Surrogacy (Regulation) Act, 2021 and provides an overview of commercial surrogacy in India, its history, growth, and controversies; the paper discusses the legal framework for commercial surrogacy and analyzes the Surrogacy (Regulation) Act, 2021, which completely bans commercial surrogacy and restrict those who can participate in it. The paper raises concerns about the exploitation of human women and the commercialization of reproduction in the Indian context. The implications of the Surrogacy (Regulation) Act, 2021, and the surrogacy model it proposes are analyzed with the help of Sections from the Surrogacy (Regulation) Act,2021, as well as other secondary resources. The author aims to evaluate and contribute to the ongoing debate on surrogacy in India and its implications.

I. INTRODUCTION

Commercial surrogacy is a process where a woman agrees to carry and birth the child of another in exchange for payment other than the medical costs incurred during pregnancy and childbirth.1 Commercial surrogacy was once a booming industry in India. Affordable costs and a favorable legal environment majorly contributed to the growth of this industry. However, the practice is subject to controversy regarding the exploitation of surrogate mothers as well as the commercialization of human reproduction. This led to the formulation of laws regulating surrogacy in India.

II. BACKGROUND

To understand the objectives and reasoning of The Surrogacy (Regulation) Act,20212 (hereinafter referred to as the “Act”), it is essential to trace the complicated trajectory of surrogacy in India. II. a Legalization of Commercial Surrogacy in 2002 Commercial surrogacy was legalized in India in 2002 and resulted in India becoming a leading destination for commercial surrogacy. International parents were enticed by the promise of skilled doctors, low cost, and liberal laws governing Indian surrogacy. Between 2008 and 2011, it was estimated that the cost of surrogacy in India was approximately between 4,00 and $ 25,000, which was a drop in the bucket compared to an estimate for the cost of commercial surrogacy in the United States of America during this period which totaled at $70,000. 3 The growth of surrogacy in India brought up several socio-legal and ethical issues.

The prospective mothers, often from marginalized communities, were underpaid and easily susceptible to abuse and manipulation. The women had little understanding of the medical-legal procedures and a lack of clearly defined regulations governing surrogacy procedures led to violations of their autonomy. Some clinics in India would strictly monitor their diet and movement during the pregnancy period. 4 There was a 1 Jyoti Chaudhary, Consequences of Surrogacy on Surrogates in India, 49 Indian Anthropologist 91-106 (2019).

2 Surrogacy (Regulation) Act,2021, No 47, Acts of Parliament, 2021(India).

3 Jaya Reddy, Indian Surrogacy: Ending Cheap Labour, 18 Santa CLARA J.INT’I L. 92 (2020).

4 Amrita Pande, Revisiting surrogacy in India: domino effects of the ban, 30 Journal of Gender Studies 395 (2021).

considerable social imbalance between the intended parents and the surrogate mother, which needed to be addressed. II. b The Indian Council for Medical Research issued guidelines for surrogacy in India in 2005 The guidelines were not legally binding but provided a framework for regulating commercial surrogacy in India. They were criticized for being restrictive and failing to address the issues of commercial surrogacy adequately. II. b. i The exploitation of surrogate mothers The guidelines did not provide adequate protection to surrogate mothers. It failed to address the bargaining inequality between intended parents and prospective mothers. It suggested that the negotiation should be conducted independently between the surrogate mother and the couple. 5 However independent negotiation meant prospective mothers were in a disadvantageous position.

It also attempted to eliminate the role of Assisted Reproductive Technology clinics to protect the surrogate mother from further exploitation. II. b. ii Citizenship Issues Unchecked international commercial surrogacy agreements eventually brought up novel legal issues regarding paternity, citizenship, and nationality under circumstances that were neither addressed by surrogacy contracts nor by any existing legislation. 6 Surrogacy arrangements adhered to the existing rules regarding parentage, termination of parental rights, and adoption because there were no laws in India specifically addressing surrogacy. The Manji Yamada v. Union of India and Another7 is an example of a case where a child was left abandoned and stateless.

5 Reddy, supra note 4.

6 Swati Gola, One step forward or one step back? Autonomy, agency, and Surrogates in India Surrogacy

(Regulation) Bill 2019, 17 INT'L J of Law in Context 58 (2021).

7 Manji Yamada v. Union of India & Anr, (2019) 9 SCC 674.

In this high-profile surrogacy case, the intended parents from Japan had hired a surrogate mother, but they separated before the birth of the child. The intended parents refused to take custody of the child named Manji. The child was left in legal limbo, as the Indian Government refused to issue her a visa to leave the country, nor was the Japanese Government prepared to grant the child citizenship. Finally, the Supreme Court of India ruled that the child would leave the country with her grandmother, who had been appointed as the legal guardian. The case highlighted the intricacies of Indian surrogacy and raised questions about the legal rights of surrogate children and parents. II.c Draft of Surrogacy (Regulation) Bill,2016 A proposed piece of legislation called the Surrogacy (Regulation) Bill, 20168 was

presented to the Indian Parliament in 2016. The Bill sought to ban commercial surrogacy completely and only permit altruistic surrogacy, which would mean that the surrogate mother would not be paid anything beyond insurance and medical costs. 9 In 2015, the Ministry of Home Affairs issued a notification outlawing international couples engaging in commercial surgery in India. 10 To monitor the proper execution and to guarantee the welfare of the surrogate mother and the child born through surrogacy, the Bill also suggested the creation of national and state surrogacy boards. The measure also stipulated that offenders would be fined and imprisoned for breaking the law. The Surrogacy (Regulation) Bill of 2016 was debated extensively but was not passed as a law. This was the first attempt by the Indian Government to create a law regulating commercial surrogacy in India. II.

d Parliamentary Standing Committee on Surrogacy Regulation Bill,2016 The Surrogacy (Regulation) Bill, 2016, was referred to the Parliamentary Standing Committee on Health and Family after its introduction in the parliament. The

8 Surrogacy (Regulation) Bill, 2016, Bill No.257 of 2016, Lok Sabha.

9 Diksha Munjal-Shankar, Commercial Surrogacy in India: Vulnerability contextualized, 59 J. of L. Inst 360 (2016). 10Astha Srivastava, The Surrogacy Regulation (2019) Bill of India: A Critique, 22 J. of INT’L Women’s Studies (2021).

Committee made a wide variety of recommendations on various topics, including eligibility criteria for intended parents, rights and protection of surrogate mothers, and penalties for those violating the Bill's provisions. The Committee recommended all intending couples, including homosexuals and unmarried couples, should be eligible for surrogacy services. Also, the surrogate mother should have the right to withdraw from the surrogacy at any point before the implantation of the embryo, and also that she should be provided with insurance compensation and monetary compensation for the duration of the surrogacy11. As per the recommendations, the surrogate mother should be given adequate medical care throughout the pregnancy. It also required the informed consent of the surrogate mother to be secured.

It suggested adequate authority be provided to State and National Surrogacy Boards to regulate the practice of surrogacy. While some of the recommendations made found their way into the Surrogacy Regulation Act,2021, for the most part, they are yet to be inculcated into any law. II. e Surrogacy (Regulation) Bill, 2019 The Bill was introduced in the Lok Sabha by the Minister of Health and Family Welfare, Dr. Harsh Vardhan, on July 15, 2019. It was essentially a successor to the Surrogacy (Regulation) Bill of 2016. The Bill proposed a complete ban on commercial surrogacy and satisfied the need for legislation on surrogacy in India. The Bill was subsequently passed and came into effect as the Surrogacy (Regulation) Act, 2021 after receiving the President's assent on December 25, 2021.

III. THE SURROGACY (REGULATION) ACT, 2021

III. a Ban on Commercial Surrogacy The Act completely bans commercial surrogacy and allows only altruistic surrogacy, which is subject to several conditions. The Act defines the term “altruistic surrogacy” as surrogacy in which there is no compensation or monetary incentive to the surrogate mother other than the medical expenses incurred and insurance coverage. 12 It regulates surrogacy clinics by prohibiting the advertising and practice of commercial surrogacy as well as surrogacy procedures by limiting them to only altruistic surrogacy. III. b Eligibility for Surrogacy The Act specifies that the intending couple must prove that they suffer from infertility problems to avail of surrogacy services.

The intending couple must also possess an eligibility certificate as per Section 4(c) of the Act issued by the appropriate authority, which indicates that the intending couple is between the age of 23 to 50 years in the case of females and 26 to 50 in the case of the males and that they have no surviving children. 13 III. c Eligibility of Surrogate Mother The Act also requires the surrogate mother to carry a certificate of eligibility issued by an appropriate authority, as mentioned in Section 4(b). This certificate indicates that the surrogate mother is a married woman with her own child, a close relative of the intending couple between the ages of 25 and 35 years, and a one-time surrogate. It also prohibits the surrogate mother from providing her own gamete. 14 III.

d National and State Surrogacy Boards Chapter V of the Act provides for the establishment of National and State Surrogacy Boards to fulfill the objective of the Act. 15 The functions of the National Surrogacy Board are mentioned in Section 25 and include advising the central Government, reviewing the implementation of the Act, prescribing a code of conduct for surrogacy

12 §2(b), Surrogacy (Regulation) Act,2021.

13 §4(c), Surrogacy (Regulation) Act,2021.

14 §4(b), Surrogacy (Regulation) Act,2021.

15 Chapter V, Surrogacy (Regulation) Act,2021.

clinics, and supervising the working of authorities constituted under the Act as well as the State Surrogacy Boards. 16 The State Surrogacy Board has its own functions provided in Section 26 of the Act. It is expected to review the working of appropriate authorities within the state and recommend action against them, monitor the implementation of the Act, and send reports to the Central Government and National Board regarding the various activities undertaken within the state. 17 III. e Abortion of Surrogate Child Section 3(vi) allows abortion as long as the written consent of the surrogate mother is obtained, and it is in compliance with the provisions of the Medical Termination of Pregnancy Act, 197118. Abortion of the child without the consent of the surrogate mother is prohibited. III. f Offences and Penalties Chapter VII provides the penalties for offenses committed under this Act.

For any person, clinic, or clinical establishment engaging in commercial surrogacy or advertising commercial surrogacy through any means, exploiting a surrogate mother or child, abandoning or disowning a surrogate child, selling or importing human embryos or gametes, or partaking in illegal practices like sex selection during surrogacy procedure. Partaking in any of the above practices would lead to imprisonment of ten years or a fine, which may extend to ten lakhs. Any act that contravenes any of the provisions of the Act could lead to imprisonment of up to 5 years as well as a fine that may extend to 10 lakhs. Every offense under the Act is cognizable, non-bailable, and non-compoundable.

IV. ANALYSIS OF SURROGACY (REGULATION) ACT, 2021

IV. a Restrictive and Heteronormative Nature of the Act The surrogacy model proposed under the Act excludes homosexual couples as well as unmarried couples. Section 2(h) provides a definition of a "couple" as an Indian man and woman who are legally married and above the age of 18 and 21, respectively. 19 This shows Acts' interpretation of parenthood is fraught with traditional ideas of family propagated in society. The definition of a family is fluid and constantly changing; with the slow acceptance of the LGBTQIA+ community, as well as live-in relationships becoming more common, there is a necessity for the law to also grow to accommodate new identities that have their rightful place in society. The Act lays down conditions that restrict the eligibility of the surrogate mother as well. It is required that the surrogate mother must be married as well as have a child of her own.

In addition, she must also belong to an age group between 25 and 35. This could result in a number of potentially healthy mothers being automatically excluded. IV. b Disadvantages of Altruistic Surrogacy Commercial and altruistic surgery is often seen as being dichotomous; the former is the commercialization of the human body and childbirth. While the latter is considered an act of service rendered out of the goodness of one's heart. The debates around altruistic surrogacy claim that it can be just as exploitative as commercial surrogacy. 20 It is not necessary that the decision to be an altruistic surrogate is taken by the woman on her own. Indian society is notorious for attempting to deprive women of their decision-making power. Often, techniques of coercion or insistence on notions of familial duty could be called to get women from the family to accept being a surrogate.

21 The decision to be a surrogate mother could be made to lift the family out of poverty, negating the women’s right to autonomy. This could imply that surrogacy as a whole in any form is unethical, and India should consider banning surrogacy altogether, like France and Sweden.

19 §2(h), Surrogacy (Regulation) Act,2021.

20 Amrita Pande, Revisiting Surrogacy in India: domino effects of the ban, 30 Journal of Gender Studies 395 (2021). 21 Daisy Deomampo, Transnational Surrogacy in India: Interrogating Power and Women’s agency, 34 Frontiers: A Journal of Women Studies 167 (2013).

IV. c Exploitation of Surrogate Mother Altruistic surrogacy does not necessarily mean that the rights of surrogate mothers are guaranteed. The women, if they are from a marginalized or poor background, face the risk of being manipulated by the intending couple. Moreover, the Act only allows "gestational surrogacy," which means that the embryo is implanted in the surrogate mother. 22 She has no genetic connection to the child. This could lead to added health complications for the surrogate mother. A lack of medical or legal knowledge on the surrogate mother’s part means she may not even be aware of the added risk. Laws ensuring transparency in the surrogacy contract must be implemented so that the surrogate mother has all the necessary information. IV. d Rights of the Child The most vulnerable party in this entire transaction is the child.

Children born through surrogacy have the same rights as any other child. The child is owed the right to protection and development as laid down by the. The Act lays down laws that prohibit the commodification of the child as well as abandonment. It manages to go far in protecting the rights of the child.

V. CONCLUSION

The Surrogacy (Regulation) Act, of 2021 represents an important step in regulating commercial surrogacy in India and resolving a number of related issues. Commercial surrogacy is banned in India, and only altruistic surrogacy is permitted under the Act. The Act resulted in the establishment of the Assisted Reproductive Technology and Surrogacy Board at the National and State levels. The Act was born out of countless years of discourse surrounding surrogacy is not perfect, but it is a small step in the right direction in combatting women's exploitation and protecting the rights of children born through surrogacy. There are still several limitations and drawbacks that need to be addressed. Overall, the Surrogacy (Regulation) Act of 2021, although flawed, is an important milestone in the ongoing efforts to regulate surrogacy in India and protect the interests of all parties involved.

22 Jennifer Rimm, Booming Baby Business: Regulating Commercial Surrogacy in India, 30 U. PA. J. INT’I L. 1429(2009).