Published On: October 31st 2025
Authored By: Nithyasree S
Govt. Law College TVPM
Introduction
Infertility has always been a growing healthcare concern affecting both men and women. It can result from a variety of factors, ranging from age, genetics, lifestyle, and environmental aspects. With the increasing incidence of infertility, there is a need for alternative methods of reproduction to enable people to become parents.[1] Surrogacy has therefore emerged as a viable option due to advancements in artificial reproductive procedures.[2] Formerly considered taboo, surrogacy has now evolved into a mainstream method of family-building, propelled by technological advancements in reproductive medicine. Surrogacy is an arrangement in which a woman carries and delivers a child for intended parents. Two of the most common forms of surrogacy are traditional and gestational. In a conventional surrogacy contract, the surrogate mother also serves as an egg donor and is genetically connected to the child[3]. In a gestational surrogacy, on the other hand, the intended parents’ sperm and eggs are surgically blended and then deposited in a surrogate who has no genetic ties to the child[4].
India’s cultural diversity plays a vital role in shaping attitudes towards every aspect of life. Traditional values, which give importance to biological connections and blood ties, clash with the concept of gestational surrogacy, where the surrogate is not genetically related to the child. The idea of having another woman carry a child challenges the societal expectations, particularly in a culture where a woman’s worth is often linked to her ability to bear children. While many countries have embraced surrogacy as a viable option for building families, India frequently finds itself at a crossroads when it comes to embracing modern reproductive technologies. This stigma attached to infertility contributes further to the reluctance to embrace surrogacy openly. Couples facing fertility issues frequently grapple with societal judgment and familial pressure to conform to conventional expectations.
THE SURROGACY (REGULATION) ACT, 2021
The present Act regulating surrogacy was anteceded by several draft bills. The Indian Council of Medical Research (ICMR), working under the auspices of the Ministry of Health and Family Welfare, finalized the national guidelines for the delegation, supervision, and regulation of Artificial Reproductive Technology (ART) clinics in India in 2005, following extensive public debate across the country involving all stakeholders. Under these 2005 guidelines, there was no legal bar to the use of ART by a single or an unmarried woman, and the child born would have legal rights on the woman or man concerned. Thereafter, the draft Assisted Reproductive Technology (Regulation) Bill 2008(Art Bill 2008), The Art Bill 2010 and The Draft Art Bill 2013, stated to be revised grounded on the recommendations of the Ministry of Law and Justice, have constantly proposed that ART in India would be available to all, including single persons and foreign couples. The 2013 draft bill, however, never became a law. The Indian Council for Medical Research Guidelines, 2005, gave only non-statutory provisions which are neither justiciable nor enforceable in a court of law. On September 30, 2015, a draft bill named ‘The Assisted Reproductive Technology (Regulation) Bill, 2014’ was circulated. It contemplated whether surrogacy should be available to all married infertile couples, thereby barring single persons from surrogacy. Due to the wide fiscal gap and the difference between individuals engaged in the practice of commercial surrogacy, both the surrogate and the child were vulnerable to exploitation. Numerous incidents of harassment of surrogate mothers were reported in 2018-2019. Human rights exploitation rackets in the guise of surrogacy were exposed, and apprehensions were made in 2019. This revealed a critical need to expedite regulations on surrogacy[5]. The increasing demand and the unscrupulous activities resulting in the ill-treatment of vulnerable groups, forced the Indian government to take action and propose the Surrogacy Regulation Bill of 2015. A need for guidelines to protect the commissioning parents’ rights was also raised at the same time. The issue was raised in the Lok Sabha when the government took a stand to disallow marketable surrogacy in its response to question 100 on 4th December 2015. This led to the creation of the Surrogacy (Regulation) Bill in 2016, which, following multiple amendments, was passed in 2018 by the Lok Sabha. The Rajya Sabha created a committee for discussion of the Surrogacy (Regulation) Bill 2019 with various stakeholders, the conclusion of which led to some more amendments, culminating in its passage into law on December 25, 2021. It was released along with the Assisted Reproductive Technology (Regulation) Act, 2021, just a week prior. On January 25th, 2022, the new Surrogacy (Regulation) Act, 2021, went into force. The amended act permits charitable surrogacy, precluding those with financial means from abusing and taking advantage of the surrogacy option. It prohibits commercial surrogacy, as well as the trade of human gametes and embryos.
In 2020, the Indian Surrogacy Regulation Act was enforced, which seeks to regulate and streamline surrogacy services in the country. The Act outlines eligibility criteria for intended parents, age limits for surrogate mothers, and strict guidelines for surrogacy clinics. It prohibits commercial surrogacy, allowing only altruistic surrogacy where the surrogate receives no financial compensation beyond reasonable medical expenses and insurance coverage. The Act establishes National and State Surrogacy Boards to oversee and regulate surrogacy arrangements, addressing legal parentage, criminal offenses, and the protection of surrogate mothers’ rights.
The Act stipulates that the intended couple’s age on the day of certification shall be between twenty-three to fifty years in the case of a female and between twenty-six to fifty-five years in the case of a male. Furthermore, it stipulates that the intending partners must have been married for at least five years and be Indian Nationals. It is also mandated that they previously did not have any children, whether biologically, through adoption, or through surrogacy, who are still living. The parents of children who are mentally or physically challenged, who suffer from a life-threatening disorder, or who are sick with a terminal disease for which there is currently no cure, can also seek approval from the appropriate authorities and obtain a medical certificate from the District Medical Board before going through with surrogacy[6]. The Act also stipulates that divorced and widowed women between the ages of thirty-five to forty-five shall be permitted to serve as a single commissioning parent for their children.
Despite its intentions, the Act faces criticism for limited eligibility criteria, a ban on commercial surrogacy, a lack of clarity on compensation, and insufficient regulation for ART clinics. Critics argue that these limitations infringe on the right to parenthood, neglect economic opportunities for surrogate mothers, and inadequately protect their rights[7]. The existing Act discriminates against disabled children by dividing disabled and nondisabled children for the purpose of undertaking surrogacy. Even though it is unlawful for other parents who do not have disabled children, the Act expressly provides that if the parents have a disabled child, they are allowed to employ surrogacy. It goes against the UN Convention on the Rights of Persons with Disabilities, which provides that children with disabilities should have the same access to all human rights and fundamental freedoms as other children and should not be discriminated against on any basis, especially on the basis of their disability. Moreover, there are concerns that just prohibiting commercial surrogacy will drive the industry underground, allowing it to survive illegally. Legal or illegal agreements will be created if there are willing parents and surrogates.
Furthermore, the act excludes foreigners, homosexual couples, couples in a live-in relationship, and unmarried couples are all prohibited from employing surrogacy under the Act. These exclusions are unreasonable and may stand in violation of Article 14 of the Indian Constitution, as they fail to pass the reasonable classification test, especially when individuals of any marital status are allowed to adopt children, and a child born out of a live-in relationship has been given the status of the couple’s legitimate child.54 Furthermore, the Act ignores the rights of the third gender, which were recognized in the case of National Legal Services Authority v. Union of India[8].
Western countries like the United States permit both altruistic and commercial surrogacy[9]. The permissibility of commercial surrogacy raises crucial ethical questions, with critics highlighting the potential exploitation of vulnerable women. However, proponents argue that it provides women autonomy over their bodies and is a legitimate means of income. Moreover, complex legal difficulties emerged as the framework in different countries aims at different outcomes. While countries such as the USA, Georgia, Ukraine, and Colombia have surrogacy-friendly legislation, restrictive regimes have been imposed in Iceland, Germany, Sweden, Austria, and others. Consequently, nationals from countries that have banned surrogacy turned to commission it overseas, resulting in statutory difficulties when the laws clashed across international borders. The legal ban on surrogacy in many countries has been one of the main factors leading to cross-border reproductive care, where patients in need of a specific technique go abroad to access treatments unavailable in their own country, mostly in a commercial setting.[10]
CONCLUSION
Surrogacy, as a complex and evolving field, necessitates comprehensive, ethically sound legal frameworks that protect the rights of all parties involved. As societal attitudes shift and global conversations continue, the acceptance of surrogacy may gradually become more widespread. Navigating the crossroads of tradition and modernity, India and other nations must adapt legal systems to ensure the best interests of the child and provide couples facing fertility challenges with alternative paths to parenthood, free from judgment or social rejection. While the Surrogacy (Regulation) Act of 2021 attempts to regulate surrogacy in India, it falls short of meeting the Golden Triangle Test of guarding fundamental rights guaranteed by the Indian Constitution. Additionally, while the Act aims to protect women from the risks of commercial surrogacy and the Artificial Reproduction Industry, there is a concern that the Act, in turn, may foster unintended consequences of surrogacy exploitation and the underground black economy. The Act excludes certain sections of society, such as LGBTQIA+ individuals, from opting for surrogacy as a last resort for biological parenting. However, the act aims to serve as a pillar of support, supporting ethical surrogacy procedures and enabling individuals and couples to realize their parental aspirations as surrogacy continues to gain popularity as a route to parenthood.
Surrogacy, once a discreet alternative for couples facing infertility, has entered the mainstream as advancements in reproductive technology and changing societal morals reshape the way we approach family building. As surrogacy becomes more prevalent globally, it is essential for legal systems to adapt and create comprehensive, ethically sound frameworks that protect the rights of all parties involved while ensuring the best interests of the child.
References
[1] Shenfield, F., Tarlatzis, B. and Provoost, V. (2025) Ethical considerations on surrogacy† | human reproduction | oxford academic, academic.oup.com. Available at: https://academic.oup.com/humrep/article/40/3/420/7979098 (Accessed: 09 September 2025).
[2] Cui, W. (2010) ‘Mother of nothing: The agony of infertility’, Bulletin of the World Health Organization, 88(12), pp. 881–882. doi:10.2471/blt.10.011210.
[3] (2023) Gestational carrier vs. traditional surrogate: Is there a difference? Available at: https://www.rmany.com/blog/gestational-carrier-vs-traditional-surrogate-is-there-a-difference (Accessed: 09 September 2025).
[4] The Surrogacy (Regulation) Act, 2021
[5] Narayan, G. et al. (2023a) ‘The Surrogacy Regulation Act of 2021: A right step towards an egalitarian and inclusive society?’, Cureus [Preprint]. doi:10.7759/cureus.37864.
[6] The Surrogacy (Regulation) Act, 2021
[7] Igreja, A.R. and Ricou, M. (2019) ‘Surrogacy: Challenges and ambiguities’, The New Bioethics, 25(1), pp. 60–77. doi:10.1080/20502877.2019.1564007.
[8] National Legal Services Authority v. Union of India (2014) 5 S.C.C. 438.
[9] surmom_admin (2024) A global guide: Countries where surrogacy is legal, SurMom Surrogacy Center. Available at: https://www.surmom.com/a-global-guide-countries-where-surrogacy-is-legal/ (Accessed: 09 September 2025).
[10] Shenfield, F., Tarlatzis, B. and Provoost, V. (2025) Ethical considerations on surrogacy† | human reproduction | oxford academic, academic.oup.com. Available at: https://academic.oup.com/humrep/article/40/3/420/7979098 (Accessed: 09 September 2025).
