Who Gets To Be A Parent - Addressing Exclusion And Reproductive Rights In India’s Surrogacy Law

Author: LawSphereX

Category: Property & Real Estate

Published: 2026-08-23T21:43:27.579307+00:00

Updated: 2026-08-26T17:05:00.748+00:00

WHO GETS TO BE A PARENT? ADDRESSING EXCLUSION

AND REPRODUCTIVE RIGHTS IN INDIA’S SURROGACY

LAW

Diwash Saibya, LLM (HRDE), Faculty of Law, Banaras Hindu University, Varanasi

ABSTRACT

India’s Surrogacy (Regulation) Act, 2021, establishes a regulatory framework that restricts surrogacy to altruistic arrangements to prevent exploitation. However, this article argues that the Act’s eligibility criteria create systemic exclusions that violate fundamental rights and undermine its goals. Through critical legal analysis, it demonstrates discrimination against single men and unmarried women, non-traditional families, and foreign nationals by mandating access only for married, infertile, heterosexual Indian couples, widowed and divorced women. Furthermore, the Act’s exemption permitting surrogacy for couples with a disabled child perpetuates stigma and raises troubling eugenic implications, conflicting with the Rights of Persons with Disabilities Act, 2016, and constitutional equality guarantees.

The analysis extends to the infringement of reproductive autonomy under Article 21, as affirmed by the Supreme Court jurisprudence. While acknowledging protections for children’s rights and surrogate consent, significant privacy concerns under the linked Assisted Reproductive Technology Act, 2021, particularly genetic data linkage to Aadhaar and enforced donor anonymity, remain inadequately addressed. A comparison of South Asian approaches and global human rights standards (ICCPR, CEDAW, CRC) reveals that India’s framework prioritises a restrictive traditional family model over inclusivity. The article concludes by recommending amendments to remove discriminatory barriers, clarify genetic relation rules, strengthen data privacy, and ensure equitable access, aligning the law with constitutional values and societal realities.

Keywords: altruistic surrogacy, eligibility criteria, reproductive autonomy, data privacy, maternity leave.

I.

INTRODUCTION

According to Segen’s Medical Dictionary, surrogacy is the state of being a surrogate—usually understood to be a women allowing use of her uterus to carry another woman’s fertilised egg. 1 In Indian law, surrogacy is the reproductive arrangement in which the surrogate mother agrees to lend her uterus to carry a child via Assisted Reproductive Technology (ART)2 and deliver it to an intending couple, widowed or divorced woman, the latter of whom acquires full parental status thereafter. “Intending parent(s)” denotes a couple, widowed, or divorced woman who intends to become the legal parent(s) of the child born through surrogacy. The traditional and gestational classes are the two primary classifications of surrogacy. 3 In traditional surrogacy, the surrogate mother’s own egg is used, making her the genetic mother.

In gestational surrogacy, a gynaecologist performs a single embryo transfer (SET) during each IVF treatment cycle, implanting only one embryo created in a laboratory using gametes from an intended parent(s) or donor into the surrogate’s uterus. In rare or medically justified cases, up to three embryos may be transferred. 4 This restriction aims to minimise health risks linked to multiple pregnancies (twins, triplets, or more), including premature birth, low neonatal birth weight, and various maternal complications, such as pre-eclampsia and gestational diabetes. Such a surrogate has no genetic link to the child. Surrogacy arrangements may be altruistic, meaning that the surrogate, her dependents, or her representative receive no payment beyond medical and pregnancy-related expenses, other prescribed costs, and insurance coverage;5 or commercial, in which the surrogate receives a fee.

6 India bans all commercial arrangements and permits only altruistic arrangements. Despite their differences, all forms of surrogacy fundamentally share the common goal of helping intended parent(s) overcome infertility. Infertility is a growing global concern, affecting roughly one-sixth of the world’s reproductiveage population. 7 In India, recent data indicate that 18. 7 women per 1,000, or roughly 1. 9% of 1 Segen’s Medical Dictionary (2011), s. v. “surrogacy,” The Free Dictionary, https://medicaldictionary. thefreedictionary. com/surrogacy (last visited June 9, 2025). 2 Assisted Reproductive Technology (Regulation) Act, 2021, No. 42, Acts of Parliament, 2021 (India) [hereinafter “ART Act”], § 2(a). 3 Martha A. Field, Surrogacy Contracts-Gestational and Traditional: The Argument for Nonenforcement, 31 Washburn L. J. 1 (1991).

4 Surrogacy (Regulation) Rules, 2022, Gazette of India, Pt. II §. 3(i), [hereinafter “Surrogacy Rules, 2022”], R. 8. 5 Surrogacy (Regulation) Act, 2021, No. 47, Acts of Parliament, 2021 (India) [hereinafter “Surrogacy Act”], § 2(b).

6 Id., § 2(g).

7 World Health Organization, Infertility Prevalence Estimates, 1990–2021 (2023).

stable marriages, is infertile.8 At the same time, India’s total fertility rate had fallen sharply by

2019 to 21, and the rate was about 2.0 births per woman, 9 i.e., below the replacement level.

This demographic context, in which a traditionally large population is now facing both declining fertility and rising infertility, has fuelled demand for advanced reproductive technologies, such as surrogacy. India’s sociocultural landscape significantly shaped surrogacy’s proliferation, where motherhood carries paramount social value and female infertility often incurs stigma. The 2005 ICMR Guidelines, which permitted commercial surrogacy through regulated ART clinics, 10 facilitated the rapid growth of the industry. Coupled with treatment costs at roughly one-quarter of U. S. ,11 positioned India as a global ‘surrogacy hub’, predominantly serving transnational clients.

However, the practice became a focal point of legal and ethical scrutiny following the case of Baby Manji Yamada,12 which exposed critical gaps in the regulation of transnational surrogacy, particularly concerning parental rights, citizenship, and the legal status of children born through such arrangements. At its pre-2015 peak, the commercial surrogacy industry generated an estimated $400 to 500 million U. S. annually. 13 However, surrogates overwhelmingly economically marginalised women endured coercive contracts, substandard healthcare, and spatial confinement. 14 Instances of parental abandonment and stateless infants emerged. 15 In response, India imposed 2012 visa restrictions on foreign singles and same-sex couples pursuing surrogacy. 16 Consequently, the Indian Parliament took decisive action.

Following an initial 2015 announcement banning commercial surrogacy, a draft Surrogacy (Regulation) Bill was introduced in 2016. After extensive revisions and parliamentary scrutiny, the bill passed the 8 Government of India, Ministry of Health and Family Welfare, National Family Health Survey (NFHS-5), 2019– 21: Compendium of Fact Sheets: India and 14 States/UTs (Phase-II) (2021).

9 Id.

10 Indian Council of Med. Research & Ministry of Health & Family Welfare, National Guidelines for

Accreditation, Supervision and Regulation of ART Clinics in India (2005). 11 Law Commission of India, Report No. 228: Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy (2009).

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

13 Sama Resource Group for Women and Health, Birthing A Market: A Study on Commercial Surrogacy, (2012). 14 Sheela Saravanan, A Transnational Feminist View of Surrogacy Biomarkets in India, Springer Singapore (2018).

15 SAMA-Resource Group for Women & Health, Surrogacy Motherhood: Ethical or Commercial? (2012).

16 Ministry of Home Affairs, Notification No. 25022/74/2011-F.I, The Gazette of India (July 9, 2012).

Lok Sabha in 2018, was reintroduced with amendments in 2019, and ultimately culminated in the Surrogacy (Regulation) Act, 2021. II.

LEGAL

EXCLUSIONS

AND

DISCRIMINATORY

BARRIERS

IN

SURROGACY REGULATION

The enactment of the Surrogacy Act, operationalised concurrently with the ART Act, has elicited both optimism and substantive debate. The Surrogacy Act establishes National/State ART and Surrogacy Boards and appoints appropriate authorities to regulate surrogacy practices. The ART Act provides for the regulation and supervision of ART clinics and ART banks, aiming to prevent misuse and ensure safe, ethical ART services for parenthood or preservation of gametes, embryos, embryonic tissues for further use due to infertility, disease, or social or medical concerns, while also governing related research. Both Acts share the core objective of preventing abuse and ensuring responsible delivery of reproductive technologies. Despite these intentions, the framework unintentionally reinforces various forms of discrimination through exclusionary provisions.

(i) Eligibility Criteria (a) For Intending Couples— The Surrogacy Act allows for surrogacy only for Indian citizens. The Act allows only “intending couples” and “widowed or divorced women” to access surrogacy, thereby excluding single men and unmarried women from eligibility. The term “intending couple”17 specifically refers to a heterosexual, legally married couple who requires gestational surrogacy due to medically certified infertility or related conditions. 18 At the time of obtaining certification, the female partner must be between 23 and 50 years old, and the male partner must fall within the age range of 26 and 55 years. 19 Additionally, the child to be conceived through surrogacy must possess at least one gamete from the intended parents, particularly when one partner has a medical condition.

20 To qualify, the couple must not have any living child, regardless of whether the child is biological, adopted, or born via surrogacy. An exception is made only if

17 Surrogacy Act, supra note 5, § 2(r).

18 Surrogacy Rules, 2022, supra note 4, R. 14.

19 Surrogacy Act, supra note 5, § 4(iii)(c)(I).

20 Surrogacy (Regulation) Amendment Rules, 2024, Gazette of India, Pt. II sec. 3(i), [hereinafter “Surrogacy Rules, 2024”], R. 2(1)(d)(i).

the child has a mental or physical disability or is affected by a life-threatening condition or incurable illness. This exception must be certified by the District Medical Board and approved by the competent authority. 21 For widowed or divorced woman the age must be between 35 and 45 years, expressing her intention to opt for surrogacy. 22 Widow or divorcee seeking surrogacy must utilise their own eggs in conjunction with donor sperm to participate in the surrogacy process. 23 Such intending couples or woman shall obtain a certificate of recommendation from the District Medical Board in FORM 1. 24 A ‘certificate of essentiality’25 for the intending couple and a ‘certificate of eligibility’26 for the surrogate mother issued by the appropriate authority after fulfilling the conditions for surrogacy are required.

This ensures that surrogacy is pursued as a remedy for genuine infertility or related conditions. (b) For Surrogate Mother— The Act restricts surrogates to only an “ever-married” woman. A fundamental pillar of the Act is that the surrogate’s consent must be free, informed, and voluntary, as specified in FORM 227 in the language she understands. 28 She must be a married woman of age between 25 and 35 years and with at least one child of her own. 29 She must be genetically related to the intending couple or intending woman30 but should not provide her own gametes. 31 This requirement is intended to ensure that surrogates possess the emotional maturity and maternal experience necessary for a safe and stable surrogacy process.

Before implantation, the surrogate must be evaluated and certified as medically and psychologically fit and know procedures from a registered medical practitioner,32 ensuring that she fully understands the implications and risks. 33

21 Surrogacy Act, supra note 5, § 4(iii)(c)(II).

22 Id., § 2(s).

23 Surrogacy Rules, 2024, supra note 20, R. 2(1)(d)(ii).

24 Surrogacy Rules, 2022, supra note 4, R. 4.

25 Surrogacy Act, supra note 5, § 4(iii)(a).

26 Id., § 4(iii)(b).

27 Surrogacy Rules, 2022, supra note 4, R. 7.

28 Surrogacy Act, supra note 5, § 6(1)(ii).

29 Id., § 4(iii)(b)(I).

30 Id., § 2(zg).

31 Id., § 4(iii)(b)(III).

32 Id., § 4(iii)(b)(V).

33 Id., § 6(1)(i).

The surrogate can withdraw her consent before embryo implantation. 34 She can serve as a surrogate only once in her life,35 and the number of attempts of any surrogacy procedure shall not be more than thrice,36 thereby reducing the risk of repeated physical strain and potential health complications. An intending couple or woman is required to obtain general health insurance for the surrogate mother, valid for a period of 36 months, from an insurance provider or agent accredited by the Insurance Regulatory and Development Authority. This insurance must cover all medical expenses related to pregnancy, including potential complications during and after childbirth, and may also include coverage in the event of the surrogate’s death. Additionally, an affidavit confirming this arrangement must be submitted before a Judicial Magistrate of the First Class.

37 In situations where termination of pregnancy is medically necessary, the decision is with the surrogate mother. Pre-determined sex selection is prohibited subject to the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,

1994.38 Abortion of the foetus necessitates obtaining written consent from the surrogate

mother, as well as approval from the same appropriate authority concerned, in accordance with the provisions of the Medical Termination of Pregnancy Act of 1971 and Rules of 2021.39 This provision is critical for protecting her bodily autonomy and ensuring that she is not compelled to continue a pregnancy that endangers her health. In Assam, local views valorise surrogacy’s ‘blood relation’ for a childless couple.40 “Single intending parent” has access to surrogacy services in countries such as Mexico, Colombia and U.S., etc. Surrogacy may be motivated by genuine and personal reasons, considering factors such as age, career stability, and the unpredictability of future relationships, etc.41 In U.S., single men choose gestational surrogacy to secure a genetic tie to their child compared to adoption.42 Children born through surrogacy and raised by single fathers exhibit psychosocial

34 Id., § 6(2).

35 Id., § 4(iii)(b)(IV).

36 Surrogacy Rules, 2022, supra note 4, R. 6.

37 Id., R. 5(1) & (2).

38 ART Act, supra note 2, § 26.

39 Surrogacy Act, supra note 5, § 3(vi); Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971 (India), § 3; Medical Termination of Pregnancy (Amendment) Rules, 2021, Gazette of India, Pt. II sec. 3(i), R 3B.

40 Anna Arvidsson et al., Surrogate mother - praiseworthy or stigmatized: a qualitative study on perceptions of surrogacy in Assam, India, 10(1) Glob Health Action 1328890 (2017). 41 Nicola Carone et al., Single fathers by choice using surrogacy: why men decide to have a child as a single parent, 32(9) Hum Reprod. 1871 (2017).

42 Id.

development on par with peers from two-parent families, provided they are nurtured in emotionally supportive and stable environments. 43 In effect, single men are not permitted to use surrogacy, and most single women are also barred. Such a right to surrogacy should be available to single men and women throughout India. Exclusion based on marital status is not justified and infringes on the right to make reproductive decisions. These exclusions are considered unfair and infringe on the equality principle of the Indian Constitution44 since it denies family-building options to unmarried individuals. (ii) Exclusion of Non-traditional Families The concept of family is a socially constructed idea, shaped by mutual understanding and accepted realities within society. It is not solely determined by biology or natural law.

The Surrogacy Act is explicitly framed around a traditional family model: an Indian man and woman bound by marriage. As a result, live-in couples, same-sex couples, single parent, and other non-traditional families are entirely excluded. The Supreme Court has delivered a transformative line of jurisprudence affirming the constitutional legitimacy and rights of non-traditional relationships. In Navtej Singh Johar,45 this foundational judgment decriminalised homosexuality by striking down Sec. 377 IPC. 46 Crucially, it declared that LGBTQ individuals possess the full spectrum of fundamental rights to privacy, autonomy, dignity, and identity. They are “entitled to the equal protection of the law” and cannot be relegated to second-class citizenship. The Court explicitly recognised their right to intimate association and family life on par with heterosexuals.

In Deepika Singh,47 expanding the legal conception of “family,” the Court held that “atypical” manifestations, including domestic, unmarried, heterosexual, and queer relationships, are entitled to equal protection and benefits under law. The ruling dismantled the notion that only marriage-based heteronormative units alone can constitute a valid family. In Shafin Jahan,48 affirming individual liberty, the Court ruled that the right to choose one’s life partner is intrinsic to Article 21, encompassing autonomy and dignity. In K. E. Krishnan,49 the Court held that a long- 43Henrique Pereira, Children of Single Fathers Created by Surrogacy: Psychosocial Adjustment Considerations and Implications for Research and Practice, 9(11) Children (Basel) 1644 (2022).

44 INDIA CONST. art. 14.

45 Navtej Singh Johar vs Union of India, AIR 2018 SC (CRI) 1169.

46 Indian Penal Code, No. 45 of 1860, § 377, Acts of Parliament, 1860 (India).

47 Deepika Singh v. Central Administrative Tribunal, [2022] 7 S.C.R. 557.

48 Shafin Jahan vs Asokan K.M., AIRONLINE 2018 SC 1136.

49 Kattukandi Edathil Krishnan & Anr. v. Kattukandi Edathil Valsan & Ors, [2022] 7 S.C.R. 1120.

standing cohabiting relationship creates a presumption akin to marriage, unless it is rebutted. In Supriya Chakraborty,50 while stopping short of legalising same-sex marriage or civil unions, the Court delivered a powerful unanimous affirmation of queer rights. It held that queer individuals have a fundamental right to form intimate relationships emotional, mental, and sexual free from state interference and to be protected from discrimination, deriving these rights from Articles 19(1)(a), 21, and 15. The Surrogacy Act’s categorical exclusion of nontraditional relationships stands in stark contrast to evolving legal norms. The government’s position that decriminalisation of a relationship does not “legalise” it for purposes of surrogacy reflects a narrow view of family rights that the Supreme Court has been chipping away at for over a decade.

These “atypical” families equally deserve legal rights. The diversity of family forms is a natural outcome of human social evolution, rather than an “anomaly”. (iii) Discrimination Against Disabled Children Every child is a divine gift, and no form of disability should diminish their inherent worth or rights. The Surrogacy Act raises concerns about persons with disabilities. Under the said Act, an intending couple is deemed ineligible if they have any “surviving child” of any kind, except in the case where the child is “mentally or physically challenged” or “suffers from a lifethreatening incurable condition”. 51 This means that couples who already have a healthy child cannot seek surrogacy, but if their child has a serious disability with a medical board’s certification, they may be exempt from the no-child rule.

This stance is hard to reconcile with India’s obligations under the Rights of Persons with Disabilities Act, 2016 (“RPwD Act”)52 and the UN Convention on the Rights of Persons with Disabilities (CRPD). 53 Both the RPwD Act and CRPD emphasise the right of persons with disabilities to be found families on an equal basis with others. For instance, CRPD explicitly guarantees the right of men and women with disabilities to marry and found a family, with the same rights as others. 54 By contrast, the Surrogacy Act implies that a disabled child is a burden to be worked around, rather than a full and equal member of the family. Allowing surrogacy

50 Supriya Chakraborty & Anr. v. Union of India, 2023 INSC 920.

51 Surrogacy Act, supra note 5, 2021, § 4(iii)(c)(II).

52 The Rights of Persons with Disabilities Act, 2016, No. 49, Acts of Parliament, 2016 (India) [hereinafter “RPwD Act”]. 53 Convention on the Rights of the Persons with Disability, U.N.G.A. Res. A/RES/61/106 (Dec. 12, 2006), [hereinafter “CRPD”].

54 Id., art. 23.

only in cases of dreadful child disability could perpetuate stigma, suggesting that a couple may abandon their disabled child in favour of a new one. Moreover, the law’s framing raises ethical and “eugenic” concerns. The Surrogacy Act forbids abandonment for any reason, including a child’s sex or even a genetic defect, showing a laudable intent to protect surrogate-born children. 55 Yet by simultaneously stating that only parents without healthy children can use surrogacy, the Act implicitly enforces the standard of an able-bodied “ideal” child. Thus, this situation conflicts with the principle that people with disabilities are valued and fully part of society. It treats disability as a special exception rather than embracing equality. (iv) Nationality and Citizenship-Based Restrictions Another notable feature is the blanket exclusion of foreigners.

The Act permits only couples of Indian origin or an Indian woman to seek surrogacy, subject to a Board’s approval. In practice, this means that only Indian citizens, including Non-Resident Indian (NRIs), may use surrogacy services. 56 India had been a destination for “fertility tourism,” before with foreign couples and single parents travelling here for surrogacy. However, under the 2021 Surrogacy Act, such scenarios are largely foreclosed. A foreign couple cannot legally contract for surrogacy in India. As a result, India has effectively shut down its international surrogacy market. The Act prohibits all surrogacy by foreigners, and as a consequence, the global demand that once flowed to India must now seek other jurisdictions. The industry was estimated to be worth approximately US$2.

3 billion each year, representing a significant economic opportunity that could have offered mutual benefits. 57 It also fails to recognise the universal nature of the desire for parenthood. III.

RIGHTS-BASED ANALYSIS OF THE SURROGACY REGULATION

Rights-based analysis examines the Surrogacy Act and the ART Act through the lens of fundamental rights, encompassing reproductive autonomy, privacy, children’s rights, and nondiscrimination.

55 Surrogacy Act, supra note 5, § 7.

56 Surrogacy Act, supra note 5, 2021, § 2(1)(h) & (s).

57 Priya Shetty, India's unregulated surrogacy industry, 380(9854) Lancet 1633 (2012).

(i) Reproductive Autonomy and the Right to Life Reproductive autonomy is the right of individuals to make independent choices regarding their reproductive health, including whether, when, and how to have children. It encompasses access to ARTs, such as surrogacy, especially for those facing infertility or social barriers to parenthood. Extending this autonomy to surrogacy necessitates recognising the freedom of intending parent(s) to choose surrogacy as a legitimate path to family formation. It also safeguards the rights and bodily autonomy of surrogate mother, ensuring informed and voluntary participation. Legal restrictions on surrogacy risk infringing this fundamental right. The Supreme Court has affirmed that decisions concerning procreation fall within the fundamental right to life and personal liberty.

58 In Suchita Srivastava,59 the Court explicitly recognised a woman’s freedom to “make reproductive decisions” as integral to personal liberty. Similarly, in Devika Biswas,60 it held that the “right to reproduce is a fundamental right,” highlighting reproductive autonomy within the right to privacy and dignity. However, the Surrogacy Act imposes eligibility criteria that functionally restrict this right. By limiting access to surrogacy to specific categories, the law curtails reproductive choices for excluded groups. These conditions, such as marital requirements, age caps and the “childlessness” mandate acts as discriminatory. These restrictions delimit the scope of reproductive autonomy, which is protected under Article 21, effectively denying equal access to family formation through surrogacy.

(ii) Privacy and Medical Confidentiality in ART Procedures The ART Act contains explicit provisions to protect privacy and data confidentiality. All ART clinics and banks must register in a national registry and are legally bound to maintain strict confidentiality of the personal and medical information of the intended parent(s), donors, and surrogate,61 with penalties for unauthorised disclosure. These measures align with India’s constitutional right to privacy, which encompasses bodily autonomy and procreative choices. 62 The ART Act requires all necessary information, including the Aadhaar card details of the

58 INDIA CONST. art. 21.

59 Suchita Srivastava v. Chandigarh Administration, (2009) 14 SCR 989.

60 Devika Biswas v. Union of India, (2016) 10 SCC 726.

61 Mehaak Jaggi & Vishavjeet Chaudhary, Assisted Reproductive Technology (Regulation) Act, 2021: A Timely Legislation for a Timeless Problem, Bar & Bench (Mar. 7, 2022).

62 Justice K.S. Puttaswamy (Retd) v. Union of India, 2019 (1) SCC 1.

gamete donor,63 to assisted reproductive technology banks. 64 With reproductive histories potentially tied to Aadhaar biometrics, without stringent safeguards against mass surveillance or clinic leaks, such as encryption protocols or a dedicated data authority, this creates risks of state/commercial misuse. The ART Act statutorily enforces donor anonymity by barring clinics from disclosing donor identities to recipients. In this case, a question arises of child’s rights to know their genetic origin65 in case where the child develops a genetic disorder, should the privacy of the gamete donor take precedence or child’s right to access such information prevail? It is donor anonymity versus right to information. (iii) Rights of Children Born through Surrogacy Children born via surrogacy are guaranteed full legal status as natural children of the intended parents.

The Act explicitly provides that a “child born out of surrogacy procedure... shall be deemed to be a biological child of the intending couple” and is entitled to “all the rights and privileges available to a natural child” under any law. 66 In practical terms, this means that the intended parents automatically acquire legal parentage from birth. The child’s birth certificate and official records will name the intended parent(s), ensuring clear parentage for inheritance, maintenance, and citizenship purposes. The law thereby protects the right to inheritance by treating the surrogacy born child as indistinguishable from a biologically conceived child. The Act also forbade the abandonment or renunciation of surrogate-born child within or outside India.

Intended parent(s) are prohibited from deserting the child for any reason, including genetic or birth defects, sex, medical condition, or multiple births. 67 A parentage and custody order issued by a First-Class Magistrate’s Court or higher requested jointly by the intending parent(s) and the surrogate serves as the official birth affidavit for the child. 68 (iv) Leave Entitlements for Government Employees Involved in Surrogacy Recent government rules have extended maternity and paternity leave to cases of surrogacy.

63 ART Act, supra note 2, § 2(1)(h).

64 Id., §27(6).

65 Convention on the Rights of the Child, U.N.G.A. Res. 44/25 (Nov. 20, 1989), art. 7.

66 Surrogacy Act, supra note 5, § 8.

67 Id., § 7.

68 Id., § 4(iii)(a)(II).

Under the Central Civil Services (Leave) (Amendment) Rules, 202469 if a surrogate and an intending (commissioning) mother are government employees, they are entitled to maternity leave. Both the surrogate mother and the intending mother, each with less than two existing children, may take 180 days’ paid maternity leave for the surrogacy pregnancy. 70 Likewise, an intending (commissioning) father who is a government servant with less than two children is granted 15 days’ paid paternity leave within six months of the child’s birth. 71 In addition, the commissioning mother may avail herself of regular child-care leave as per the rules. 72 This progressive step aligns with contemporary societal values.

These amendments ensure that civilservice employees participating in surrogacy receive the same parental leave benefits as those for natural childbirth, reflecting an equitable approach to surrogacy in government employment policy. IV.

SOUTH ASIAN SURROGACY LAWS AND GLOBAL HUMAN RIGHTS

STANDARDS

Pope Francis recently condemned surrogate motherhood as “a grave violation of the dignity of the woman and the child”. 73 Likewise, a 2018 U. N. report warned that some commercial surrogacy schemes “amount to the sale of children”. 74 Understandably, national laws vary widely; some jurisdictions ban surrogacy entirely, others permit only altruistic arrangements, and a few allow commercial contracts. No binding international convention yet regulates surrogacy, although the Hague Conference on Private International Law is currently drafting a new instrument on parentage/surrogacy. 75 In South Asia, Nepal’s Supreme Court permits surrogacy exclusively for infertile married Nepali couples, explicitly banning single individuals, transgender couples, and all foreign nationals. 76 In Pakistan, no specific surrogacy legislation exists, creating significant legal ambiguity.

In Farooq Siddiqui, the Federal Shariat Court declared surrogacy agreements 69 Central Civil Services (Leave) (Amendment) Rules, 2024, Gazette of India, Pt. II sec. 3(i), [hereinafter “CCS Rules, 2024”].

70 Id., R. 2(6).

71 Id., R. 3(6).

72 Id., R. 4(8).

73 Julia Englebert et al., International Approaches to Surrogacy Regulation, The Regulatory Review

(Mar. 2, 2024).

74 Id.

75 HCCH Monthly Update: April 2024, Conflict of Laws (May 1, 2024).

76 U.S. Embassy Nepal, Surrogacy Services Are Banned in Nepal,

Available at, https://np.usembassy.gov/surrogacy-services-are-banned-in-nepal/ (last updated May 3, 2023).

religiously invalid and unenforceable under Islamic law, citing violations of lineage (nasab) and maternity principles. The Court further recommended criminalising surrogacy and amending the Penal Code to punish all involved parties, i. e. , intended parents, surrogates, and doctors. 77 In Bangladesh, no specific laws regulate surrogacy, resulting in a legal grey area. 78 In Sri Lanka, surrogacy is practised informally without dedicated legislation. The Sri Lanka Medical Council provisionally regulates it under guidelines for Assisted Reproductive Technologies. 79 Bhutan and Afghanistan have no established regulatory frameworks. Despite this, a range of international human rights norms have informed surrogacy law. The Universal Declaration of Human Rights (UDHR) emphasises the right to privacy and family life.

For example, Article 12 of the UDHR protects against interference with privacy, family and home. 80 The International Covenant on Civil and Political Rights (ICCPR) similarly provides that “the family is the natural and fundamental group unit of society” entitled to state protection (Art. 23(1)) and guarantees equality in marriage and family (Arts. 23, 24). ICCPR protects privacy (Art. 17), which bears on reproduction. 81 The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires states to ensure special protection for mothers and children (Art. 10) in order “to ensure... the strengthening of their status” during maternity. 82 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) insists on the equality of women and men in family life (Art. 16) and mandates that women have equal rights to their children’s nationality (Art. 9).

83 The Convention on the Rights of the Child (CRC) recognises every child’s right to an identity, nationality, and preservation of family ties (Arts. 7, 8, 9, 18). 84 Moreover, the CRC’s Optional Protocol on the Sale of Children (OPSC) obliges states to prohibit the sale of children in all

77 Farooq Siddiqui v. Mst. Farzana Naheed, F.S.C. 1 (Pak. 2017).

78 Ayman Shabana, Islamic Law, Assisted Reproductive Technologies, and Surrogacy, Islamic L. Blog (June 30, 2021). 79 Ministry of Health, Sri Lanka, Code of Practice and Guidelines for Medically Assisted Reproductive Techniques, 2024.

80 Universal Declaration of Human Rights, U.N.G.A. Res. 217A, (Dec. 10, 1948), [hereinafter “UDHR”].

81 International Covenant on Civil and Political Rights, U.N.G.A. Res. 2200A (XXI) (Dec. 16, 1966), [hereinafter “ICCPR”].

82 International Covenant on Economic, Social and Cultural Rights, U.N.G.A. Res. 2200A (XXI) (Dec. 16, 1966), [hereinafter “ICESCR”]. 83 Convention on the Elimination of All Forms of Discrimination Against Women, U.N.G.A. Res. 34/180 (Dec. 18, 1979), [hereinafter “CEDAW”]. 84 Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (Nov. 20, 1989), [hereinafter “CRC”].

forms which extend to exploitative surrogacy contracts.85 Under these instruments, states have a duty to prevent discrimination (ICCPR Art. 26, CEDAW Art. 2), protect reproductive autonomy (ICESCR Art. 12, CEDAW Art. 12), and uphold the best interests and identity rights of children (CRC Arts. 3, 7, 8). In sum, international norms do not uniformly endorse or forbid surrogacy, but they emphasise non-discrimination, family formation, and protection of women and children. V.

CONCLUSIONS AND RECOMMENDATIONS

Surrogacy has the power to transform the lives of individuals and couples experiencing infertility. It is vital to protect the fundamental right to create a legally recognised family from unnecessary government intrusion. Accordingly, India should establish adaptable surrogacy legislation that is periodically reviewed and revised to keep pace with evolving social attitudes, medical advancements, and global best practices. To establish an exhaustive regulatory structure for surrogacy, these recommendations are made: (i) A provision or legislation should be established to protect personal/genetic data and privacy-related data, strict access controls and periodic privacy impact assessments. This will safeguard the privacy rights of all parties. (ii) Many ART clinics still lack standard protocols.

How compliance is monitored to ensure safe pre- and postnatal services for surrogates is vague. A standard protocol should be established. (iii) The Act should be amended to afford equitable, non-discriminatory access to surrogacy services for all prospective parent(s). This should also include foreigners, and the Act should specify to which citizens a child would legally belong to prevent issues of statelessness. This would make the Act more inclusive and accessible. (iv) Limiting surrogates to “genetically relatives” risks forcing family obligations. The 85 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G. A. Res. 54/263, Annex II, U. N. Doc. A/RES/54/263 (May 25, 2000), [hereinafter “CRC- OPSC”].

definition of “genetically related” is vague and undefined. (v) The child’s right to access information regarding the surrogate mother, genetic parent, and other pertinent details should be explicitly mentioned. This would ensure respect for the child’s right to identity.