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Commercial Surrogacy in India: A Critical Analysis

Surrogacy is the process in which a woman carries and delivers a child for a couple or individual. It became very popular among parents in India as well as across the nation also because in India, cost of surrogacy is relatively low as compared to other nations. This research article discusses about surrogacy, its introduction, about its legal provision in India with landmark judgements. This article also discusses about the legal issues related to surrogacy in India. It aims to provide a clear knowledge about the concept of surrogacy and to enhance the knowledge of the readers.

Surrogacy is a word which is derived from the Latin word 'Surrogatus' which means 'Substitute' or someone appointed to act in the place of another.

India was very popular for surrogacy among other countries before commercial surrogacy was banned in India.

The Surrogacy (Regulation) Act,2021 prohibits the commercial surrogacy. It only allows the altruistic surrogacy in which a surrogate mother does not receive any monetary compensation except necessary medical and legal expenses.

'When money is exchanged for pregnancy, some believe, surrogacy comes close to organ-selling, or even baby-selling....'- Thomas Frank

Legal Provisions and landmark cases
In India, surrogacy is regulated by Surrogacy (Regulation) Act, 2021. This act prohibits the commercial surrogacy in India and allows only altruistic surrogacy.

There are various landmark judgements related to the surrogacy in India.

Here are the cases:
Baby Manji Yamada V Union of India (2008):
It was resolved by the Indian Supreme Court in 2008, making it the first surrogate verdict. It was developed under the assumption that surrogacy contracts were lawful and only discussed the legality of such arrangements.

Jan Balaz V Anand Municipality (2009):
This is a landmark case in Indian surrogacy law. It dealt with the issue of nationality of children born through surrogacy to an Indian surrogate mother and a father having German citizenship. Since surrogacy was not recognised in Germany, newly- born children could not receive German citizenship.

Legal issues related to surrogacy in India
In India, Surrogacy involves various legal issues, according to the Surrogacy (Regulation) Act, 2021 which set various strict regulations.

The legal issues include:
  • Ban on commercial surrogacy: This Regulation Act prohibits commercial surrogacy in India and aims to prevent exploitation, but it has led to concerns that it will increase the risk of illegal and unregulated surrogacy arrangements.
  • Altruistic Surrogacy only: This law allows only altruistic surrogacy, where a surrogate mother does not receive any compensation beyond medical expenses and insurance.
  • Single-Time Surrogacy: Surrogate mothers can only undertake surrogacy once in their lifetime. This limitation may reduce the availability of surrogate mothers.
  • Eligibility Restrictions: Only Indian heterosexual married couples who have been married for at least five years can opt for surrogacy. This excludes single individuals, same-sex couples, and foreigners.
  • Ethical and moral concerns: Various ethical debates continue around the morality of surrogacy and the welfare of the child born through surrogacy.

Surrogacy in India has undergone significant changes with introduction of Surrogacy (Regulation) Act, 2021, which prohibits the commercial surrogacy and it allows on altruistic surrogacy.

Altruistic Surrogacy involves no compensation to the surrogate mother other than the medical and insurance expenses related to the pregnancy.

The eligibility criteria restrict surrogacy to Indian heterosexual married couples. It excludes single individual, same-sex couples and foreigners.

Various cases have highlighted the complexities associated with surrogacy. It illustrates the diverse legal, ethical and emotional complexities involved in this practice.

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