Introduction
In surrogacy, a woman, referred to as the surrogate, bears and gives birth to a child on behalf of a different person or couple, known as the intending parents. Those who are unable to conceive naturally because of infertility, certain medical disorders, or certain health hazards related to pregnancy usually seek this arrangement. There are two main forms of surrogacy: gestational surrogacy, in which an embryo generated from the intended parents’ or donors’ genetic material is placed in the surrogate, and conventional surrogacy, in which the surrogate’s egg is fertilised, making her the genetic mother[1]. Due in major part to improvements in medical technology and a more straightforward parental law environment, gestational surrogacy has become the more common choice in modern practice.
India’s surrogacy market grew quickly in the early 2000s, drawing interest from around the world as an affordable option for intended parents. A strong healthcare system, lax restrictions, and very cheap medical costs all contributed to India’s prominence as a surrogacy hub. But as demand increased, so did problems with exploitation, insufficient standardisation of procedures, and worries about the well-being of surrogates. The Surrogacy (Regulation) Act, 2021 was introduced as a result of requests for regulations to safeguard all parties and resolve moral conundrums. This law represents India’s attempts to balance the benefits of surrogacy as a practical method of reproduction with the need to guard against exploitation and abuse.
This study explores the ethical implications of current legislation and the legal framework that governs surrogacy in India, with a focus on the Surrogacy (Regulation) Act, 2021. It seeks to review the Act’s provisions critically, determine if they are consistent with human rights standards, and look at how the Act may affect India’s standing in the international surrogacy market. The paper concludes by offering recommendations for a more equitable and inclusive regulatory framework that upholds the rights and welfare of all stakeholders involved.
Legal Landscape of Surrogacy in India
The surrogacy industry in India operated in a highly unregulated atmosphere with a lot of gaps in the legislative supervision system in the early 2000s[2]. Due to the lack of a clear legal framework, commercial surrogacy expanded quickly and attracted intended parents to India, which offered reasonably priced, high-quality medical care. The Indian Council of Medical Research (ICMR) recommendations provided the main regulatory advice before to 2016. These guidelines were non-binding and specified ethical standards for surrogacy services. These recommendations promoted the creation of contracts between intended parents and surrogate mothers and advised surrogates to give informed consent. Unfortunately, these principles’ inability to be enforced meant that they were unable to effectively stop exploitation or provide surrogates with complete protection. Furthermore, the rules did not adequately address important concerns, leaving surrogacy arrangements open to disagreements and abuse. These issues included the possible exploitation of surrogates, the citizenship status of children born via surrogacy, and the legal rights of intended parents.
Notable cases like Baby Manji Yamada v. Union of India (2008)[3] and Jan Balaz v. Anand Municipality (2010)[4] brought to light the ethical and legal complications of surrogacy in India. In the Baby Manji Yamada case, a divorce before the child’s birth presented legal difficulties for a Japanese couple who had commissioned a surrogacy arrangement in India. The Supreme Court intervened in response to urgent concerns expressed over the citizenship and nationality of surrogate children. The grandmother of the kid was granted custody by the Court, highlighting the pressing need for legislative reform to make clear the legal status and paternity of such youngsters. Similar challenges were faced by a German couple in the Jan Balaz case while trying to get citizenship for their twins born in India via surrogacy because of conflicting nationality regulations. In order to systematically address these challenges, it is imperative that clear legal rules be established, as the Supreme Court recommended in its proposal for legislative action[5]. The decisions rendered in these instances brought to light the intricate relationships between parentage, custody, and citizenship in the context of international surrogacy agreements, underscoring the urgent need for a well-thought-out legislative solution to control the surrogacy market in India.
India passed the Surrogacy (Regulation) Act, 2021 in reaction to several legal issues and developing moral concerns. This extensive law offers a thorough regulatory framework that forbids commercial surrogacy and allows only selfless surrogacy, in which surrogates are solely compensated with their medical costs and insurance coverage. The Act essentially restricts surrogacy to familial connections and selfless situations by requiring surrogates to be close relatives of the intended parents. In addition, it places severe eligibility conditions on would-be parents, limiting access to legally married Indian couples who fulfil age standards and have proof of medical infertility. This discriminatory approach excludes foreign nationals, single people, and members of the LGBTQ+ community, which raises important concerns about equality and inclusiveness.
In order to guarantee adherence to the Act’s terms, surrogacy boards must be established at both the federal and state levels. These boards have the responsibility of monitoring surrogacy clinics to stop illicit activities, enforcing regulations, and providing eligibility certifications. The Act also includes criminal measures that subject people involved in illicit surrogacy agreements to penalties and jail time. This strict legal structure seeks to prevent women from being exploited, defend surrogate mothers’ rights, and ensure the wellbeing of the children delivered via surrogacy.
The Surrogacy (Regulation) Act, 2021, has drawn a lot of criticism from a range of parties, notwithstanding its regulatory objective. Opponents claim that by preventing women from being paid for their labour, the ban on commercial surrogacy erodes women’s autonomy. Restricting surrogacy to immediate family members may limit the pool of possible surrogates, which might put excessive pressure on family members to take on this position. Furthermore, it has been perceived as discriminatory to exclude foreign nationals, single people, and LGBTQ+ people from eligibility, raising questions about the Act’s compliance with equality and human rights standards. Numerous analysts contend that these clauses uphold conventional family arrangements, which do not fully represent the varied social realities of modern society.
In judicial interpretations, Indian courts have acknowledged these criticisms while underscoring the importance of protecting vulnerable individuals from exploitation. In cases related to surrogacy since the enactment of the Act, courts have emphasized adherence to the legislative framework to ensure the welfare of both surrogates and the children born through such arrangements. Nevertheless, the ongoing legal challenges and public discourse indicate that further reforms may be necessary to foster a more inclusive and balanced regulatory environment for surrogacy in India.
Ethical Considerations in Surrogacy
A central ethical concern surrounding surrogacy is the autonomy of women regarding their own bodies[6]. Surrogates are only eligible for payment for medical costs and insurance under the Surrogacy (Regulation) Act, 2021; they are not entitled to any more financial remuneration for their time, labour, or effort. This implies that surrogacy is limited to altruistic agreements. Because it restricts women’s ability to make educated judgements about the circumstances surrounding their participation in surrogacy, this restriction raises important concerns about personal autonomy and physical integrity. The paradigm of altruistic-only surrogacy is criticised for undermining surrogates’ agency and for ignoring their capacity to make independent decisions about their bodies and the financial conditions of their engagement. Although many women could consider surrogacy to be a financially feasible alternative, the altruistic framework essentially eliminates this choice, placing a moral component on individual decisions. Moreover, the need that surrogates be intimately linked to the intended parents puts additional strain on familial ties, which may jeopardise sincere consent and increase the possibility of coercion.
The ethical terrain of surrogacy is further complicated by worries about exploitation and financial compulsion. Many surrogate mothers originate from economically poor homes, and the reason for regulating surrogacy generally focusses on safeguarding these vulnerable women from exploitation. The purpose of India’s prohibition on commercial surrogacy was to alleviate the possibility of financial compulsion forcing financially disadvantaged women to act as surrogates. Though the altruistic paradigm seeks to allay these worries, economic compulsion could nonetheless exist. The mandate that surrogates be family members may result in circumstances where people feel forced to take part in surrogacy out of familial loyalty rather than out of real choice. Furthermore, the lack of monetary payment for surrogates lessens their efforts and creates moral dilemmas on whether or not this approach actually upholds surrogates’ dignity. The ban on commercial surrogacy might unintentionally drive the industry underground and expose surrogates to uncontrolled and perhaps abusive situations. Therefore, even though the Act aims to shield women from financial pressure, it might not be able to accomplish this and might perhaps create new hazards.
Of utmost ethical importance are the rights and wellbeing of children born via surrogacy. The legal acknowledgement of children, family relationships, and possible societal stigma are the main ethical concerns[7]. In order to safeguard children’s rights, the Surrogacy (Regulation) Act, 2021 tries to define parentage and name the intended parents as the legal parents. However, there are moral questions about what is in the kid’s best interests, especially when parents may leave their child behind because of unforeseen events like illness or changes in their personal circumstances. The absence of particular procedures in the Act to handle such situations may place children in dangerous situations. Furthermore, children born via surrogacy could face discrimination or stigma from society, particularly if their communities don’t understand or accept the arrangement. Although access to stable and supportive family contexts for these children may be restricted due to the Act’s tight criteria for intending parents, ethical frameworks emphasise the need of providing these children with such surroundings.
Moreover, the Surrogacy (Regulation) Act, 2021, has drawn criticism for its restrictive attitude, authorising surrogacy just for legally married Indian heterosexual couples. Because the Act excludes foreign nations, LGBTQ+ people, and single parents, it poses serious ethical problems about equality and inclusion. These limitations may discriminate against non-traditional family forms while supporting conventional family arrangements. The Indian Constitution’s equality and non-discrimination clauses, according to critics, are violated by this position. Furthermore, the Act severely restricts the capacity of LGBTQ+ people and single parents to create children through surrogacy by barring them from expressing their reproductive rights. International human rights principles that support equal access to reproductive technology regardless of marital status, sexual orientation, or nationality may also be at odds with this restrictive eligibility framework. The Act perpetuates inequality in the legal system by failing to take into account the variegated social fabric of modern Indian society and sticking to such a narrow definition of permissible family configurations.
Comparative Analysis with International Surrogacy Regulations
Different cultural, legal, and ethical contexts have informed the regulatory approaches to surrogacy that different countries throughout the world have adopted[8]. The Surrogacy Arrangements Act of 1985 allows surrogacy in the United Kingdom, although it severely restricts the practice by only permitting altruistic surrogacy. This law makes surrogacy agreements invalid in court and outlaws commercial surrogacy. Parental orders, essential for transferring legal parentage from the surrogate to the intending parents, must be acquired post-birth[9]. The objective of this legislative framework is to provide a legal road for altruistic agreements while reducing the dangers related to commercialisation.
However, state laws pertaining to surrogacy vary widely in the United States, which leads to a disjointed landscape. States that permit both commercial and charitable surrogacy, like as California, are seen as being surrogacy-friendly. Pre-birth orders can establish paternity before the child is delivered, and surrogacy arrangements are legally binding in California. Conversely, other jurisdictions persist in enforcing strict or ambiguous regulations, leading to a patchwork of laws that reflect varying perspectives on family structure and the right to procreate. This instance demonstrates how regional autonomy may lead to a range of actions while causing significant regulatory problems.
Like the UK, Canada only permits altruistic surrogacy as permitted by the Assisted Human Reproduction Act of 2004, which forbids any remuneration other than the repayment of the surrogate’s reasonable costs. This framework aims to allow people to pursue surrogacy ethically while also preventing the commercialisation of surrogacy and protecting surrogates’ rights. Ongoing discussions in Canada, however, raise concerns about whether or not these limitations obstruct surrogacy access and reproductive freedom.
India may learn a great lot from these worldwide regulatory methods, notably with relation to surrogacy commercialisation, consent, and autonomy. In order to prevent coercive techniques, the UK model highlights how important it is to maintain compassion in surrogacy agreements while ensuring that they do not become legally binding. This point of view might direct India’s regulatory approach, allowing it to uphold moral standards without forcing surrogates to execute binding contracts. On the other hand, the UK system has drawn criticism for purportedly diminishing intended parents’ legal protection and surrogate rights. Therefore, India may benefit from a more intricate legal system that achieves a balance between moral values and the express legal recognition of surrogacy agreements in order to protect all parties involved.
The U.S experience emphasises the value of reproductive autonomy even more, especially in light of its states’ regulatory-friendly policies[10]. The popularity of legally permitted commercial surrogacy in places like California demonstrates the possible benefits of giving surrogates financial autonomy while yet upholding anti-exploitation laws. Regulating frameworks that support surrogates’ economic rights without approving full commercialisation should be taken into consideration by India. These frameworks would allow limited commercial surrogacy under stringent standards designed to avoid abuse. Moreover, the U.S. scenario emphasises the need for consistent legal norms throughout jurisdictions, implying that India would gain from unified national laws that reduce disparities between states.
Furthermore, India’s existing regulatory stance, which emphasises ethical issues and places restrictions on financial reward, is consistent with Canada’s altruistic surrogacy model. However, India may learn a lot from the current discussion in Canada about the effects of stringent surrogacy regulations. For instance, in order to guarantee surrogate remuneration that is equitable and prevent the process from becoming commercialised, India may investigate a more flexible payment scheme. Furthermore, by extending the protections provided to surrogates under the Surrogacy (Regulation) Act of 2021, India could incorporate Canada’s dedication to upholding surrogates’ rights, which offers a crucial viewpoint on balancing moral considerations with pragmatic realities.
Challenges and Implications of the Surrogacy (Regulation) Act, 2021
There are several obstacles to overcome in order to effectively execute the Surrogacy (Regulation) Act, 2021, especially in terms of monitoring and enforcing its requirements. To supervise agreements and control clinics, surrogacy boards must be established at the federal and state levels. Setting up these boards, however, presents administrative and logistical difficulties, particularly in rural regions with weak regulatory frameworks. The Act’s unclear enforcement procedures give rise to questions over its efficacy and uniformity. Furthermore, gaps in the law might permit unofficial or illegal surrogacy activities. For example, the law requires altruistic surrogates to have close family links, but it does not outline strict verification procedures[11]. Such uncertainties might encourage people to break the law, undermining its intended protection of surrogate rights and prevention of exploitation.
The Act’s prohibition on commercial surrogacy has a big effect on India’s surrogacy market as it has traditionally drawn intended parents from outside who live in nations where surrogacy is either expensive or prohibited[12]. The Act lowers demand for surrogacy services by limiting eligibility to Indian heterosexual married couples, which might force the business underground. This may lead to the emergence of a surrogacy black market, which would be dangerous since there would be no legal protections for these unregulated agreements, leaving intended parents with few legal options and surrogates open to abuse.
Furthermore, India’s competitiveness in the global surrogacy market may be weakened by the exclusion of foreigners and non-traditional family structures, such as single parents and LGBTQ+ people, which might drive demand to nations with more lenient regulations. This change may prompt Indian couples to look for surrogates elsewhere, completely evading the Act. As a result, the Act may unintentionally compromise the safety and openness of surrogacy procedures, which would run counter to its goal of creating a safe environment for all participants.
The Act has been under fire for perhaps not complying with international human rights norms, especially with regard to equality and reproductive rights. Surrogacy limits women’s autonomy over their reproductive choices and their entitlement to just recompense by restricting it to charitable agreements. Human rights values that support physical autonomy and educated decision-making over reproductive capacity are incompatible with this position. The stringent qualifying requirements, which exclude foreign nationals, single parents, and LGBTQ+ people from using surrogacy services, raise further concerns about discrimination because they go against the inclusiveness and non-discrimination tenets of human rights frameworks.
Furthermore, the Act could be at odds with developing international human rights legislation standards that acknowledge reproductive rights as crucial to equality and personal autonomy. Strict eligibility criteria represent an antiquated viewpoint that might not align with modern society norms. There could be increasing demand to review the Act’s provisions in order to bring it more closely in line with international norms and promote a more inclusive, rights-based approach to surrogacy regulation as India participates in international human rights negotiations.
Recommendations for Future Reforms
A more inclusive strategy that strikes a balance between ethical considerations and human liberty should be embraced by legislative modifications in order to solve the shortcomings of the Surrogacy (Regulation) Act, 2021. The implementation of tightly controlled commercial surrogacy is one possible solution that would stop exploitation and ensure that surrogates are fairly compensated for their services. This might entail placing limits on pay to make sure surrogates aren’t underpaid or subjected to financial pressure for their services. Furthermore, extending the eligibility requirements to foreign nationals, LGBTQ+ people, and single parents would represent a more inclusive conception of family formations and be consistent with global human rights norms.
Additional laws pertaining to surrogate rights should be prioritised in order to improve safeguards for surrogates, intended parents, and children[13]. It is imperative to mandate comprehensive health insurance that covers postpartum health issues as well as pregnancy-related costs. Throughout the surrogacy procedure, regular health examinations, counselling, and financial assistance have to be made available. Legal frameworks should also make parentage clear for kids born via surrogacy clear in order to prevent misunderstandings and guarantee that kids’ legal rights are upheld. For intended parents as well as surrogates, more security and stability would result from the establishment of parenting rules early on.
In order to promote an informed public that recognises and values surrogacy as a viable reproductive option, public education about surrogacy and its implications is essential. In order to debunk myths and encourage well-informed decision-making, government and non-governmental organisations should fund awareness efforts that cover the moral, legal, and social elements of surrogacy. Establishing peer support groups and counselling services as well as other forms of assistance for surrogates can also help to provide a caring atmosphere that values their mental and emotional well. Pre- and post-partum assistance should be offered by these resources to make sure surrogates are ready for the mental and physical rigours of being a surrogate.
The judiciary plays a critical role in interpreting and refining the Surrogacy (Regulation) Act, particularly in addressing ambiguities within the legislation. Judicial interpretation can clarify definitions related to surrogate eligibility, the rights of intended parents, and processes for enforcing surrogacy agreements. Courts may also establish precedents that influence how specific provisions are applied, shaping the future of surrogacy regulation in India. Furthermore, the judiciary can advocate for reforms that reflect changing societal values and international standards, promoting a progressive approach to surrogacy that protects individual rights while upholding ethical principles.
Conclusion
The legal and ethical aspects of surrogacy legislation in India are intricately intertwined. The autonomy and rights of surrogate mothers, the financial consequences of limiting surrogacy to selfless agreements, and the possibility of non-traditional family structures being marginalised by the existing legal system are at the heart of these concerns. Although the Surrogacy (Regulation) Act, 2021 addresses certain ethical conundrums, its implementation and enforcement have presented serious difficulties. This might eventually jeopardise everyone’s wellbeing by causing the surrogacy sector to fall and uncontrolled methods to increase.
In the future, it will be crucial to adopt a balanced regulatory strategy that safeguards the welfare and rights of intended parents, surrogates, and children. This might entail changing the eligibility requirements to include a wider range of family structures and permitting controlled commercial surrogacy. The surrogacy landscape is a reflection of changing views on family and reproductive rights as well as larger cultural ideals. As India navigates these developments, continual conversation among lawmakers, the court, and civil society will be crucial to ensure that surrogacy legislation preserve ethical norms while embracing the complexity of modern family dynamics and reproductive choices.
Author
ADITEYA JC
School of Law (CHRIST Deemed to be University)
[1] Pande, A. (2010). Commercial Surrogacy in India: Manufacturing a Perfect Mother‐Worker. Signs, 35(4), 969–992.
[2] Munjal-Shankar, D. (2016). COMMERCIAL SURROGACY IN INDIA: VULNERABILITY CONTEXTUALISED. Journal of the Indian Law Institute, 58(3), 350–366.
[3] AIR 2009 SUPREME COURT 84
[4] Letters Patent Appeal No: 2151/2009, Gujarat High Court
[5] Daisy Deomampo. (2013). Transnational Surrogacy in India: Interrogating Power and Women’s Agency. Frontiers: A Journal of Women Studies, 34(3), 167–188.
[6] Deonandan, R., Green, S., & van Beinum, A. (2012). Ethical concerns for maternal surrogacy and reproductive tourism. Journal of Medical Ethics, 38(12), 742–745.
[7] RUDRAPPA, S., & COLLINS, C. (2015). ALTRUISTIC AGENCIES AND COMPASSIONATE CONSUMERS: Moral Framing of Transnational Surrogacy. Gender and Society, 29(6), 937–959.
[8] Scott, E. S. (2009). SURROGACY AND THE POLITICS OF COMMODIFICATION. Law and Contemporary Problems, 72(3), 109–146.
[9] Latham, S. R. (2020). The United Kingdom Revisits Its Surrogacy Law. The Hastings Center Report, 50(1), 6–7.
[10] Smietana, M., Rudrappa, S., & Weis, C. (2021). Moral frameworks of commercial surrogacy within the US, India and Russia. Sexual and Reproductive Health Matters, 29(1), 377–393.
[11] Chaudhary, J. (2019). Consequences of Surrogacy on Surrogates in India. Indian Anthropologist, 49(2), 91–106.
[12] Ibid
[13] Howard, S. (2014). Taming the international commercial surrogacy industry. BMJ: British Medical Journal, 349.