Legal and Ethical Issues in Surrogacy in India

Abstract

Surrogacy represents a dynamic and sensitive intersection of law, ethics, medicine, gender, and human rights. In India, the practice has evolved from an unregulated commercial enterprise into a legally recognized but tightly controlled process. Over the past two decades, surrogacy has emerged as both a hopeful pathway to parenthood for infertile couples and a controversial site of ethical debate concerning women’s bodily autonomy, economic vulnerability, and child rights.

This paper explores the legal and ethical dimensions of surrogacy in India, with special emphasis on the Surrogacy (Regulation) Act, 2021 and its subsequent amendments. It traces the judicial development of surrogacy jurisprudence through landmark cases such as Baby Manji Yamada v. Union of India and Jan Balaz v. Anand Municipality, which exposed the lacunae in existing legal frameworks and prompted legislative intervention.

While the 2021 Act seeks to prevent commercial exploitation and ensure ethical surrogacy practices, it simultaneously narrows reproductive choices by allowing only altruistic surrogacy for married Indian couples. This restrictive model raises constitutional and ethical questions relating to gender equality, individual autonomy, and reproductive justice under Articles 14 and 21 of the Constitution of India.

Drawing from statutory interpretation, judicial reasoning, and contemporary scholarship, the paper argues that a balanced approach is necessary one that protects surrogate mothers from coercion and exploitation while also recognizing the legitimate reproductive aspirations of diverse individuals and families. The study concludes that true justice in surrogacy regulation requires harmonizing ethical safeguards with autonomy, inclusivity, and human dignity, ensuring that surrogacy remains a compassionate and equitable practice rather than a source of discrimination or deprivation.

Introduction

Surrogacy is an arrangement where a woman agrees to bear a child for another person or couple who will become the child’s parent(s) after birth. In India, surrogacy emerged as a thriving industry in the early 2000s due to low costs and minimal regulation. Clinics across Gujarat, Maharashtra, and Tamil Nadu catered to both Indian and foreign commissioning parents. However, this commercialization raised serious legal and ethical questions regarding exploitation, parentage, and the commodification of women’s bodies and children.

Until recently, India lacked a comprehensive statutory framework governing surrogacy. The Indian Council of Medical Research (ICMR) issued non-binding guidelines in 2005, but the absence of enforceable regulation resulted in inconsistent judicial outcomes and widespread ethical violations. Recognizing these issues, Parliament enacted the Surrogacy (Regulation) Act, 2021, marking a decisive shift from commercial to altruistic surrogacy.

Legal Framework Governing Surrogacy in India

Early Judicial Developments

The Supreme Court and High Courts played a critical role in shaping surrogacy jurisprudence prior to statutory regulation.

In Baby Manji Yamada v. Union of India, the Supreme Court recognized surrogacy as a legitimate means of parenthood, holding that there was no prohibition against surrogacy under Indian law at the time.¹ The Court, however, expressed concern over the absence of a legal framework to protect the rights of surrogate mothers and children.

Similarly, in Jan Balaz v. Anand Municipality, the Gujarat High Court dealt with the issue of citizenship for twins born through surrogacy to German parents.² The Court held that children born to Indian surrogates were Indian citizens by birth under Article 5 of the Constitution, though the Union Government later appealed the matter. These cases underscored the urgent need for legislative clarity.

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 (“the Act”) was enacted to prohibit commercial surrogacy and regulate altruistic surrogacy.³ Section 3(b) defines “altruistic surrogacy” as one where no monetary compensation is paid to the surrogate except for medical expenses and insurance coverage. Section 4 limits eligibility to Indian married couples with proven infertility and excludes foreigners, live-in partners, and same-sex couples.

Section 6 requires the surrogate’s written and informed consent, while Section 7 restricts each woman to act as a surrogate only once in her lifetime. Section 38 imposes penalties for engaging in or advertising commercial surrogacy, prescribing imprisonment up to ten years and fines up to ₹10 lakh.

The Act also establishes the National and State Surrogacy Boards to oversee and enforce compliance.⁴ The accompanying Assisted Reproductive Technology (Regulation) Act, 2021 regulates ART clinics and gamete donation, ensuring coordination between ART and surrogacy laws.

Constitutional Dimensions

The constitutional validity of several provisions of the 2021 Act has been questioned. Petitioners have argued that restricting surrogacy to heterosexual married couples violates Articles 14 and21 of the Constitution, which guarantee equality and the right to personal liberty and reproductive autonomy.⁵ The exclusion of single parents and same-sex couples is viewed as discriminatory and inconsistent with the evolving jurisprudence on privacy and reproductive rights established in Justice K.S. Puttaswamy v. Union of India.⁶

Ethical Issues in Surrogacy

Exploitation and Informed Consent

Ethically, the most significant concern in surrogacy is the potential exploitation of economically disadvantaged women. Prior to regulation, many surrogates were recruited from impoverished communities, offered inadequate compensation, and subjected to medical and psychological risks without informed consent.⁷ Reports indicated that some were confined in hostels, deprived of autonomy, and coerced into multiple pregnancies.

The altruistic model seeks to eliminate financial inducement; however, critics argue that denying fair compensation undermines women’s autonomy and converts reproductive labour into unpaid service. Ethically, genuine consent requires not only the absence of coercion but also empowerment through education, counselling, and independent legal advice.

Commodification of the Female Body and Child

Commercial surrogacy has been criticized for commodifying women’s reproductive capacities and transforming children into objects of contract. Feminist scholars argue that such arrangements treat motherhood as a service and the child as a product.⁸ On the other hand, some bioethicists contend that surrogacy can be ethically permissible if it respects autonomy, ensures informed consent, and avoids exploitation.

The challenge lies in balancing moral objections to commodification with the recognition of reproductive labour as legitimate work deserving of protection and remuneration.

Rights of the Child

Children born through surrogacy face unique legal and ethical dilemmas concerning parentage, citizenship, and identity. Before the 2021 Act, statelessness and abandonment were major risks, as seen in Baby Manji and Jan Balaz. Section 9 of the Act now vests parentage in the intending couple, ensuring legal clarity. However, the Act does not expressly recognize a child’s right to know their genetic or gestational origins—a principle supported by international human rights law, including Article 7 of the Convention on the Rights of the Child⁹

Autonomy and Bodily Integrity

The surrogate’s right to autonomy and bodily integrity must be central to ethical regulation. Section 6(1) of the Act requires written consent, but in cases where surrogates are relatives, familial pressure may undermine voluntariness. Ethical practice demands continuous informed consent throughout the pregnancy, not merely at the outset.

Additionally, restrictions such as allowing surrogacy only once and only by a “close relative” may appear protective but risk paternalism, implying that women cannot freely decide to be surrogates.

Gender Justice and Reproductive Rights

From a feminist legal perspective, surrogacy raises the question whether prohibiting compensation truly empowers women or merely removes a potential income source. The Supreme Court in Suchita Srivastava v. Chandigarh Administration recognized reproductive choice as a component of personal liberty under Article 21.¹⁰ Ethical surrogacy law must thus reconcile protection from exploitation with respect for reproductive freedom.

Legal–Ethical Tensions in the Current Framework

Balancing Commercialization and Protection

India’s transition from a commercial to an altruistic model reflects an attempt to address exploitation but creates fresh dilemmas. While banning commercial surrogacy prevents profit-driven abuse, it also limits reproductive options for many and may push the practice underground, fostering black-market arrangements without oversight.¹¹ Ethically, prohibition alone is insufficient; regulation must ensure fairness, transparency, and rights protection.

Equality and Non-Discrimination

Restricting surrogacy to heterosexual married couples raises constitutional and ethical questions of equality. In Navtej Singh Johar v. Union of India, the Supreme Court emphasized the constitutional morality of equality and dignity for LGBTQ+ individuals.¹² Excluding same-sex couples and singles from surrogacy contravenes this principle and fails to account for diverse family structures.

Welfare of the Child and Legal Certainty

Despite the Act’s clarity on parentage, issues like the child’s right to identity, inheritance, and citizenship in cross-border arrangements remain ambiguous. The lack of provisions for foreign or OCI parents may lead to renewed disputes similar to Jan Balaz.

Enforcement Challenges

Effective enforcement remains problematic. The establishment of surrogacy boards and mandatory registration of clinics is commendable, yet implementation capacity varies widely across states. Corruption, lack of awareness, and informal brokers still undermine ethical compliance.¹³

Suggested Reforms

1. Introduce a regulated compensation model that fairly rewards surrogates for their labour under transparent limits to prevent exploitation.
2. Broaden eligibility to include single, divorced, widowed, and same-sex individuals, ensuring equality and reproductive justice.
3. Ensure continuous consent through regular counselling and reaffirmation during the pregnancy.
4. Enhance surrogate protection with long-term insurance, post-delivery care, and pension benefits.
5. Recognize the child’s right to know their origins through confidential registries accessible upon maturity.
6. Strengthen enforcement by empowering National and State Boards with investigation powers and grievance mechanisms.
7. Promote public awareness to reduce stigma and support ethical surrogacy as a legitimate reproductive right.

Conclusion

Surrogacy in India has evolved from an unregulated commercial enterprise to a highly restricted altruistic arrangement. The Surrogacy (Regulation) Act, 2021 represents an important step toward ethical regulation, yet it remains overly prohibitive. Ethically sound law must balance protection against exploitation with respect for autonomy, equality, and reproductive freedom.

Future reforms should aim for an inclusive, transparent, and rights-based framework that safeguards surrogate mothers, ensures the welfare of children, and affirms every individual’s right to form a family. India’s surrogacy regime must thus move from a paradigm of control to one of empowerment.

Reference

1. Baby Manji Yamada v. Union of India, (2008) 13 S.C.C. 518 (India).
2. Jan Balaz v. Anand Municipality, A.I.R. 2009 Guj. 21 (India).
3. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
4. Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
5. Suchita Srivastava v. Chandigarh Administration, (2009) 9 S.C.C. 1 (India).
6. Surrogacy (Regulation) Act, No. 47 of 2021, INDIA CODE (2021).
7. Assisted Reproductive Technology (Regulation) Act, No. 45 of 2021, INDIA CODE (2021).
8. Constitution of India, arts. 14, 21.
9. Amrita  Pande,  Wombs  in  Labor:  Transnational Commercial Surrogacy in India (Columbia Univ. Press 2014).
10. Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005).
11. S. Parashar & A. Nirwani, Surrogacy in India: Constitutional Challenges and Ethical Concerns, 5 J. Informatics Educ. & Res. 45 (2025).
12. The Week, The Complex Landscape of Surrogacy in India: Law, Ethics, and Parenthood Pathways (Oct. 19, 2025).

Footnotes

1. Baby Manji Yamada v. Union of India, (2008) 13 S.C.C. 518 (India). https://www.casemine.com/judgement/in/5609ae82e4b0149711413f7b ↩︎
2. Jan Balaz v. Anand Municipality, A.I.R. 2009 Guj. 21 (India).https://www.casemine.com/judgement/in/56b48efa607dba348fff6a16 ↩︎
3. Surrogacy (Regulation) Act, No. 47 of 2021, § 3(b), INDIA CODE (2021) https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf ↩︎
4. Id. §§ 14–16.https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf ↩︎
5. INDIA CONST. arts. 14, 21. ↩︎
6. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).https://indiankanoon.org/doc/601492 ↩︎
7. Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005).https://www.isarindia.net/file/prilim_pages.pdf ↩︎
8. Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India 15–17 (Columbia Univ. Press 2014). ↩︎
9. Convention on the Rights of the Child, art. 7, Nov. 20, 1989, 1577 U.N.T.S. 3.https://assets.ohchr.org/documents/professionalinterest/crc.pdf ↩︎
10. Suchita Srivastava v. Chandigarh Administration, (2009) 9 S.C.C. 1 (India).https://indiankanoon.org/doc/1234567 ↩︎
11. S. Parashar & A. Nirwani, Surrogacy in India: Constitutional Challenges and Ethical Concerns, 5 J. Informatics Educ. & Res. 45 (2025).https://jier.org/index.php/journal/article/view/3445 ↩︎
12. Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).https://indiankanoon.org/doc/630782 ↩︎
13. The Week, The Complex Landscape of Surrogacy in India: Law, Ethics, and Parenthood Pathways (Oct. 19, 2025).https://www.theweek.in/news/health/2025/10/19/the-complex-landscape-of-surrogacy-in-india-law-ethics-and-parenthood-pathways.html ↩︎