Surrogacy in India – Ethical and Legal Challenges

Surrogacy, as a method of assisted reproduction, has emerged as both an opportunity and a challenge in India. It allows couples unable to conceive naturally to have a child through a surrogate mother, but at the same time raises complex legal, ethical, and social issues. For years, India was considered a global hub for commercial surrogacy, with thousands of foreigners coming to hire Indian women as surrogates due to lower costs and fewer regulations. This led to exploitation, lack of rights for surrogate mothers, and disputes over the status of children, prompting the need for a clear legal framework.

Initially, surrogacy in India was governed only by guidelines issued by the Indian Council of Medical Research (ICMR) in 2002, which were not legally binding. The absence of statutory law created confusion, with cases of abandonment of children, non-payment to surrogates, and questions of citizenship for children born to foreign couples. Judicial intervention provided some clarity. In Baby Manji Yamada v. Union of India (2008), the Supreme Court recognized surrogacy as a legitimate means of parenthood and addressed issues relating to the custody of a surrogate child. However, the lack of comprehensive legislation meant that exploitation of poor women and misuse of commercial surrogacy continued unchecked.

Responding to these concerns, Parliament enacted the Surrogacy (Regulation) Act, 2021. The law prohibits commercial surrogacy and permits only altruistic surrogacy, where a close relative of the intending couple agrees to act as a surrogate without financial compensation beyond medical expenses. It restricts eligibility for surrogacy to Indian married couples who have been childless for at least five years and provides strict age limits for both intending parents and surrogate mothers. The Act also establishes national and state surrogacy boards to regulate and monitor surrogacy clinics, aiming to curb unethical practices.

While the law attempts to protect women from exploitation, it raises ethical and legal challenges of its own. Critics argue that banning commercial surrogacy denies women the right to make autonomous choices about their bodies. Many women, especially from economically weaker backgrounds, viewed surrogacy as a source of livelihood, and the ban has effectively pushed the practice underground, where exploitation may continue without regulation. Limiting surrogacy to married heterosexual couples also excludes single parents, live-in partners, and members of the LGBTQ+ community, raising concerns of discrimination and violation of equality under Article 14.

The ethical debate surrounding surrogacy also extends to the commodification of women’s bodies and children. Some argue that commercial surrogacy reduces women to mere wombs for hire and children to products of contract. Others contend that with proper regulation and consent, commercial surrogacy could empower women by giving them control over reproductive choices and economic opportunities. The question of informed consent, fair compensation, and medical risks to surrogate mothers remains central to this debate.

Another challenge lies in determining the legal parentage of children born through surrogacy. Indian law now recognizes the intending couple as the legal parents, but disputes can arise if the intending parents refuse to accept the child due to deformities or marital breakdown. Citizenship issues also complicate matters when foreign couples are involved, though the new law largely excludes foreigners from the process. Additionally, questions of inheritance, custody, and maintenance of surrogate children continue to demand judicial interpretation.

The future of surrogacy regulation in India must strike a balance between protecting vulnerable women from exploitation and recognizing reproductive rights as part of personal liberty under Article 21. A more inclusive framework that allows single parents, LGBTQ+ persons, and childless couples without the five-year waiting requirement may be necessary to align with constitutional principles of equality and dignity. At the same time, strict safeguards ensuring informed consent, health protection, and legal certainty for surrogate mothers and children are essential.

In conclusion, surrogacy in India presents both possibilities and dilemmas. The legislative shift from unregulated commercial surrogacy to restricted altruistic surrogacy reflects concerns of exploitation but also creates exclusions and limitations. The ethical and legal challenges surrounding autonomy, equality, and protection of rights continue to shape the debate. Ultimately, the goal should be to create a compassionate and balanced framework that respects the dignity of surrogate mothers, protects the interests of children, and upholds the reproductive rights of intending parents within the spirit of the Constitution.