Whose Womb, Whose Right? Surrogacy Law and Ethics in India

A woman carries a pregnancy for nine months and hands the newborn to someone else. That arrangement is called surrogacy, and it took India from an unregulated global marketplace for wombs to one of the world's strictest regulatory regimes: the Surrogacy (Regulation) Act, 2021, which permits only altruistic surrogacy. Between those two points lie courtroom dramas over stateless babies, feminist battles over exploitation and agency, and a fundamental constitutional question: is the decision to have a child through another's womb a private right or a public concern?

What surrogacy is: the basic vocabulary

Surrogacy is an arrangement in which a woman, the surrogate mother, agrees to carry a pregnancy and give birth to a child on behalf of another person or couple, the intending parents (the law also says commissioning couple), who will raise the child as their own. The surrogate hands over the child after birth and relinquishes parental rights.

Two medical types. In gestational surrogacy, the embryo is created by in vitro fertilisation (IVF) using the egg and sperm of the intending parents or donors and implanted in the surrogate's uterus, so the surrogate has no genetic link to the child. In traditional surrogacy, the surrogate's own egg is fertilised, usually by artificial insemination, so she is the child's genetic mother as well as its birth mother. Indian law permits only gestational surrogacy, precisely to avoid the legal tangle of a surrogate who is also the genetic mother.

Two economic types. In altruistic surrogacy, the surrogate receives no payment beyond medical expenses and insurance; she acts out of kinship or compassion. In commercial surrogacy, she is paid a fee for the service. India now allows only the altruistic form: commercial surrogacy is a criminal offence.

Why does anyone seek surrogacy? The most common reason is infertility, which affects a significant share of couples (estimates vary, but surveys commonly put it above one in ten), whether from blocked fallopian tubes, an absent or damaged uterus, repeated miscarriage, or medical conditions that make pregnancy dangerous. Delayed marriage has added a second driver: as more couples marry later, age-related infertility has risen. A third driver, single persons and same-sex couples who wish to parent, exists socially but is excluded legally: the 2021 Act shuts them out, which is one reason the law remains contested.

The scale of the underlying need explains why regulation matters beyond the clinic: the WHO reported in April 2023 that about 1 in 6 people globally experience infertility at some point in their lives. The ethical vocabulary itself is older than the Indian debate: the UK's Warnock Committee (1984) produced the first systematic ethics of assisted reproduction, and its report led to the Human Fertilisation and Embryology Authority (HFEA), the statutory-regulation model India studied while drafting its own laws.

India's road to regulation: from bazaar to ban

Through the 2000s, India had no surrogacy law at all, only Indian Council of Medical Research (ICMR) guidelines from 2002 that had no legal force. Into that vacuum stepped a booming commercial industry: clinics in Gujarat, most famously in Anand, matched foreign couples with Indian surrogates at a fraction of Western prices, and India acquired the uncomfortable nickname of the world's surrogacy hub.

The first alarm bells were courtroom cases, not legislation. In Baby Manji Yamada v. Union of India (2008), a Japanese couple commissioned a surrogate child and then divorced before the birth; the father wanted the baby, the mother did not, and the infant was left in legal limbo until the Supreme Court awarded custody to the paternal grandmother. In 2010, the Gujarat High Court in the Jan Balaz case confronted the citizenship of twin surrogate children born to German parents, children left stateless in the gap between German and Indian law. Both cases exposed the same truth: India was running a global surrogacy industry with no statute to govern it.

The economics explain why the trade centred on India. A full surrogacy arrangement here cost a fraction of the price in the United States, while Indian clinics offered experienced doctors and English-speaking staff. Surrogates, typically poor women recruited by intermediaries, received only a small share of the fee; the surplus flowed to clinics and agents. Investigative reports of the period described hostels where surrogates lived under supervision for the duration of the pregnancy, a picture that supplied the exploitation narrative behind the eventual ban.

The state began closing the door in stages. The Law Commission's 228th Report (2009) urged Parliament to legislate on assisted reproduction and surrogacy. In 2015, the government barred foreign nationals from commissioning surrogacy in India, ending the cross-border trade overnight. The 2015 bar worked through the immigration system: medical visas for surrogacy were stopped and exit clearances for surrogate-born children were tightened, so the foreign demand that had sustained the industry simply could not enter the country.The Surrogacy (Regulation) Bill was introduced in the Lok Sabha in 2016, went through a select committee, lapsed, and returned in a new form. Finally, in December 2021, Parliament passed two companion statutes together: the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, both in force from 25 January 2022.

The law kept moving after 2021. In February 2024 the government amended the Surrogacy Rules (GSR 105(E)) to permit the use of donor gametes, one egg or one sperm, where a certified medical condition prevents the intending couple from supplying both. The absolute both-gametes-must-be-yours rule had made surrogacy impossible for women with conditions like MRKH syndrome (born without a uterus); the amendment converts a medical exception into notified law. In answers, it is the proof that the altruistic-only model is being refined, not frozen.

The Surrogacy (Regulation) Act, 2021: the altruistic-only model

The Act's core choice is stated in one line: only altruistic surrogacy is legal, and commercial surrogacy is prohibited and punished. Altruistic surrogacy is defined as surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of any kind are given to the surrogate mother or her dependents, except her medical expenses and insurance coverage.

Who may commission? Only an intending couple: two Indian citizens, married for at least five years, with the woman aged 23 to 50 and the man aged 26 to 55. They must hold two certificates: a certificate of essentiality, issued by a District Medical Board confirming proven infertility of either partner, and a certificate of eligibility. The couple must have no surviving child, whether biological, adopted or surrogate, with one humane exception: the bar does not apply if the surviving child suffers from a mental or physical disability or a life-threatening disorder. A 2023 rules amendment added a practical concession: a married couple may use a donor egg or donor sperm if the District Medical Board certifies that a medical condition makes it necessary; earlier, the couple had to use their own gametes.

Who may be a surrogate? An ever-married woman aged 25 to 35 who has a child of her own, and she may act as a surrogate only once in her lifetime. The Act envisages the surrogate as a close relative of the intending couple. She must give written informed consent, pass medical and psychological fitness checks, and receive no payment beyond medical expenses and prescribed insurance. Termination of the surrogate pregnancy requires her written consent plus the authorisation of the appropriate authority, except where her life is in danger.

The machinery: a National Surrogacy Board at the Centre and State Surrogacy Boards in the states advise governments, lay down codes of conduct and monitor implementation, while appropriate authorities register surrogacy clinics and issue the certificates. Surrogacy may be performed only in registered clinics.

The Act is not only restrictive; it also writes in protections for the surrogate. She is entitled to medical care through the pregnancy and to insurance coverage for a prescribed period; she retains bodily autonomy, meaning she cannot be forced to continue or terminate a pregnancy against her will; and any termination requires her written consent alongside the appropriate authority's authorisation. These clauses answer the commercial era's worst abuses: the forced caesareans, the withheld medical information, the abandonment after delivery.

But the altruistic model has its own critics. The requirement that the surrogate be a close relative is meant to guarantee genuine consent, yet scholars warn it can produce the opposite: family pressure on a sister or sister-in-law to volunteer, with refusal carrying social costs that a stranger would never face. And where demand persists but payment is banned, economists warn of disguised compensation, gifts, loans and favours that regulators cannot see, arguing that a transparent, regulated payment with a floor price might protect surrogates better than a ban that drives money underground.

The teeth: undertaking or advertising commercial surrogacy, exploiting the surrogate mother, abandoning or disowning the surrogate child, and selling human embryos or gametes for surrogacy are offences punishable with imprisonment extending up to ten years and fines up to ten lakh rupees. The child born through surrogacy is deemed the biological child of the intending couple, and the couple cannot abandon the child under any circumstances.

The Act's exclusions are its most litigated feature. Single men and women, live-in partners, same-sex couples and foreign nationals cannot commission surrogacy, though a separate provision permits an intending woman, a widow or divorcee aged 35 to 45, to do so. Petitions before the courts have challenged these exclusions as violations of equality and reproductive autonomy, so treat the statute as settled law with an unsettled border: verify the latest position before the exam.

The ART (Regulation) Act, 2021: governing the clinics and banks

Surrogacy rarely happens without assisted reproduction, so Parliament passed a companion law the same month. The ART (Regulation) Act, 2021 defines assisted reproductive technology as all techniques that seek pregnancy by handling sperm or the oocyte (egg) outside the human body, which covers IVF, gamete donation and gestational surrogacy itself. Every ART clinic and ART bank must register with the National Registry of Banks and Clinics of India; registration runs for five years and is renewable.

Donor discipline is the Act's sharpest feature. A bank may collect semen from men aged 21 to 55 and oocytes from women aged 23 to 35. An oocyte donor must be an ever-married woman with a living child of her own at least three years old; she may donate only once in her lifetime, and no more than seven oocytes may be retrieved from her. Crucially, a bank may not supply the gametes of a single donor to more than one commissioning party, a rule aimed at preventing accidental consanguinity. Written informed consent is mandatory from both the commissioning parties and the donor, and the commissioning party must provide insurance cover for the oocyte donor against loss, damage or death.

The Act also professionalises the clinic-patient relationship. Clinics must offer counselling to the commissioning parties about the procedure's implications, chances of success, costs, side effects and the risk of multiple pregnancy, so that consent is genuinely informed rather than a signature on a form. Records of donors, recipients and procedures go into the national registry, and confidentiality of all parties is protected, balancing the child's eventual interest in knowing their origins against the donor's privacy.

Two protections matter for the child. First, a child born through ART is deemed the biological child of the commissioning couple, with all the rights of a natural child, and the donor has no parental rights whatsoever. Second, clinics are forbidden from offering a child of a pre-determined sex, extending the anti-sex-selection logic of the PCPNDT Act into the fertility clinic. Offences under the Act attract fines and imprisonment, and ART services are available to a woman above the legal age of marriage and below fifty, and a man below fifty-five.

The courtroom: five judgments that built the jurisprudence

Before there was a statute, there were judges. Five decisions form the backbone of every UPSC answer on surrogacy and reproductive rights, and they should be learnt as a sequence: the early cases begged Parliament to legislate, and the later ones built the constitutional vocabulary against which the 2021 Acts are now tested.

• Baby Manji Yamada v. Union of India (2008): a Japanese couple commissioned a surrogate child in Gujarat and divorced before the birth. The Supreme Court awarded custody to the paternal grandmother, but the case's real legacy is its warning: a thriving commercial surrogacy industry was operating in a complete legislative vacuum, with no rules on parentage, citizenship or the child's welfare.
• Jan Balaz (Gujarat High Court, 2010): twin children born through an Indian surrogate to German commissioning parents were left effectively stateless, since neither German nor Indian law would recognise their citizenship. The case turned a private family dispute into a public lesson on how cross-border surrogacy manufactures citizenship crises.
• Suchita Srivastava v. Chandigarh Administration (2009): the Supreme Court held that a woman's right to make reproductive choices, including whether to continue a pregnancy, is a dimension of personal liberty under Article 21, and the state could not compel termination on a mentally ill woman in state care. This is the foundational case for reproductive autonomy in Indian law.
• Devika Biswas v. Union of India (2016): arising from deaths in mass sterilisation camps, the Supreme Court recognised the right to reproductive health as part of Article 21 and condemned coercive, target-driven family planning. It anchors the principle that reproductive decisions must be voluntary and informed, a standard that applies to surrogates as much as to anyone else.
• K.S. Puttaswamy v. Union of India (2017): the nine-judge bench held privacy to be a fundamental right, including decisional autonomy over intimate personal choices such as reproduction. Every challenge to the Surrogacy Act's exclusions, whether by single persons or same-sex couples, is argued in the language Puttaswamy created.

Notice what is missing from this list: the child. Indian courts have protected the commissioning parents' choices and the surrogate's health, but the surrogate child's own rights, to identity, to know their origins, to nationality, remain the least developed part of the jurisprudence. The ART Act's rule that the donor has no parental rights settles parentage, but questions of donor anonymity versus the child's right to know will reach the courts soon, as they already have in the United Kingdom and Australia.

Read together, the arc is clear. Manji and Balaz showed what happens without a law; Suchita Srivastava, Devika Biswas and Puttaswamy supplied the constitutional grammar of autonomy, health and privacy. The 2021 Acts are Parliament's answer to the first set of cases, and they are now being measured against the second.

A sixth judgment now belongs on the list. In Arun Muthuvel v. Union of India (2023), the Supreme Court permitted a woman with MRKH syndrome to pursue surrogacy using a donor egg, reading the 2021 Act's rigours against the right to reproductive autonomy. The decision triggered the February 2024 donor-gamete amendment: the clearest Indian example of the courtroom writing the first draft and the executive publishing the final one.

The ethical debate: exploitation or empowerment?

The case for the current law begins with exploitation. In the commercial era, surrogates were overwhelmingly poor women with limited bargaining power, recruited by intermediaries, housed in hostels, subjected to multiple embryo transfers and elective caesareans, and paid sums that looked generous against their poverty but tiny against the clinic's fees. Critics called it wombs for rent: the commodification of women's bodies and of children, with consent vitiated by economic desperation. On this view, banning payment is the only reliable way to protect vulnerable women, and the altruistic model returns surrogacy to kinship and compassion.

The case against the ban begins with agency. Liberal feminists and reproductive-justice scholars argue that poor women are moral agents, not victims: a ban does not remove their poverty, it removes one of the better-paid options within it, and may push the trade underground where there are no registered clinics, no insurance and no consent forms at all. They add a second charge, paternalism: the state trusts a woman to consent to sterilisation or to carry her own high-risk pregnancy, but not to be paid for carrying someone else's.

Feminist thought itself is split down the middle, and UPSC answers gain marks by naming the split. Radical feminists see commercial surrogacy as the ultimate expression of patriarchy: women's reproductive capacity alienated and sold, with the child as the product. Liberal feminists reply that denying women the right to contract over their own bodies is the real patriarchy, and that the state should regulate the terms of the bargain rather than abolish it. Between them sits the reproductive-justice position: the problem is not payment as such but the background inequality that makes the choice unfree, which points toward welfare and livelihood policy, not just criminal law.

A third line of criticism targets the Act's exclusions. If reproductive autonomy is a facet of Article 21, critics ask, why may a married heterosexual couple commission surrogacy but not a single woman, a live-in couple or a same-sex couple? The child-welfare argument cuts both ways too: supporters of regulation cite abandoned or disabled surrogate children, while opponents reply that abandonment is already criminalised and that screening and welfare checks, not blanket bans, are the proportionate answer.

For Mains, structure the debate as a clash of three principles: protection of vulnerable women, reproductive autonomy, and the best interests of the child. The strongest answers do not pick a slogan; they show where each principle bites and then propose institutional design, licensing, standard-form contracts, insurance, independent counselling, that serves all three at once.

How the world does it: three models

India's altruistic-only model is one of three global approaches. The commercial model permits paid surrogacy under contract law: several US states, notably California, enforce commercial agreements with detailed court oversight. The altruistic model permits surrogacy but bans payment beyond reasonable expenses: the United Kingdom, Canada and Australia follow it, with the UK's Surrogacy Arrangements Act of 1985 as the classic example. The prohibitionist model bans surrogacy outright: France, Germany, Italy and Spain prohibit it, treating paid gestation as contrary to human dignity.

India's trajectory is unusual: few countries have moved all the way from commercial hub to altruistic-only in a single decade. The shift mirrors what happened in Thailand and Nepal, both of which closed their doors to foreign commissioning parents after scandals, but India went further by criminalising domestic commercial surrogacy as well. That makes India a natural case study in answers: the country that tested the commercial model at scale, judged it exploitative, and chose the strictest alternative.

Two global lessons matter for India. First, bans leak: citizens of prohibitionist countries routinely commission surrogacy abroad, recreating the citizenship tangles India saw in the Jan Balaz case. Second, several former destination countries, including Thailand and Nepal, shut their doors to foreign commissioning parents after exploitation scandals, which is the same protective logic India adopted in 2015 and 2021.

The way forward

The 2021 framework settled the question of whether surrogacy would be regulated; the live questions are about whom it serves and how well it protects. Five reforms would mature the law:

1. Close the parentage gaps. Spell out birth-registration, passport and citizenship procedures for surrogate children so that no child is stateless or parentless on paper, the exact failure the Manji and Balaz cases exposed.
1. Revisit the exclusions. Let a review committee or the courts test the single-person, live-in and same-sex exclusions against Articles 14 and 21 rather than freezing them permanently in statute; the Puttaswamy vocabulary of decisional autonomy points in that direction.
1. Police the altruistic market's shadow. Mandate independent counselling and standard-form contracts for surrogates, so that close-relative does not quietly become coerced relative, and audit clinics for disguised payments.
1. Build the evidence base. Maintain a national registry of surrogacy outcomes, surrogate health and child welfare, so the next legislative review is driven by data rather than anecdote.
1. Keep the red lines. The bans on sex selection, on the sale of children and embryos, and on abandonment of the surrogate child should remain non-negotiable whatever model evolves.

Surrogacy asks the oldest question in a new form: who may bring a child into the world, and on what terms? India's answer, for now, is that gestation may be gifted but never sold. Whether that answer survives the courts, and whether it protects the women it claims to protect, is the live question the next decade will decide.

Key Terms

• Surrogacy: Surrogacy is an arrangement in which a woman, the surrogate mother, carries a pregnancy and gives birth to a child on behalf of the intending parents, who raise the child as their own. It is the umbrella term covering gestational and traditional, altruistic and commercial forms.
• Gestational surrogacy: Gestational surrogacy is the form in which the embryo, created by IVF from the intending parents' or donors' gametes, is implanted in the surrogate's uterus, so she has no genetic link to the child. It is the only form Indian law permits.
• Traditional surrogacy: Traditional surrogacy is the form in which the surrogate's own egg is fertilised, so she is the child's genetic mother as well as its birth mother. India does not permit it, because the genetic link makes disputes over parentage far harder to resolve.
• Altruistic surrogacy: Altruistic surrogacy is surrogacy in which the surrogate receives no payment beyond medical expenses and insurance. Under the Surrogacy (Regulation) Act, 2021, it is the only legal form of surrogacy in India.
• Commercial surrogacy: Commercial surrogacy is surrogacy in which the surrogate is paid a fee beyond medical costs. India prohibited and criminalised it in 2021, with imprisonment up to ten years and fines up to ten lakh rupees, to prevent exploitation of poor women.
• Surrogate mother: Surrogate mother is the woman who carries the pregnancy on behalf of the intending parents. Under the 2021 Act she must be an ever-married woman aged 25 to 35 with a child of her own, medically and psychologically fit, acting only once in her lifetime and receiving no payment beyond medical expenses and insurance.
• Intending couple (commissioning couple): Intending couple is the person or pair commissioning the surrogacy. Under the 2021 Act it means two Indian citizens married for at least five years, the woman aged 23 to 50 and the man 26 to 55, with proven infertility and no surviving child (subject to the disability exception).
• Infertility: Infertility is the inability to conceive after sustained unprotected intercourse, or a medical condition making pregnancy impossible or unsafe. Proven infertility, certified by a District Medical Board through a certificate of essentiality, is the gateway condition for legal surrogacy in India.
• Assisted reproductive technology (ART): Assisted reproductive technology is the set of techniques that seek pregnancy by handling sperm or eggs outside the human body, including IVF, gamete donation and gestational surrogacy. The ART (Regulation) Act, 2021 requires every clinic and bank offering it to register nationally.
• In vitro fertilisation (IVF): In vitro fertilisation is the ART procedure in which an egg is fertilised by sperm outside the body and the resulting embryo is transferred to a uterus. It is the medical foundation of gestational surrogacy.
• Certificate of essentiality: Certificate of essentiality is the document issued by a District Medical Board under the Surrogacy Act confirming proven infertility of an intending couple, making surrogacy medically necessary. It is one of two certificates the couple must hold, the other being the certificate of eligibility.
• Certificate of essentiality: Certificate of essentiality is the document issued by a District Medical Board under the Surrogacy Act confirming proven infertility of an intending couple, making surrogacy medically necessary. It is one of two certificates the couple must hold, the other being the certificate of eligibility.
• Certificate of eligibility: Certificate of eligibility is the document issued by the appropriate authority confirming that the intending couple (or intending woman) and the surrogate satisfy the Surrogacy Act's age, marital-status, citizenship and no-surviving-child conditions. Without it, no clinic may begin a surrogacy procedure.
• District Medical Board: District Medical Board is the medical body designated under the Surrogacy Act to examine the intending couple and issue the certificate of essentiality, confirming that surrogacy is medically indicated. It is the Act's gatekeeper between a couple's desire for surrogacy and their legal access to it.
• Oocyte donor: Oocyte donor is a woman who donates eggs for ART procedures. Under the ART Act she must be ever-married, aged 23 to 35, with a living child of her own at least three years old; she may donate only once in her lifetime with no more than seven oocytes retrieved, and she is entitled to insurance cover from the commissioning party.
• Appropriate authority: Appropriate authority is the body designated under the Surrogacy and ART Acts to register clinics and banks, grant certificates of eligibility, and enforce the law, including ordering searches and seizures. It is the on-the-ground regulator that turns the statutes' rules into licences and inspections.
• National Surrogacy Board: National Surrogacy Board is the apex body created by the Surrogacy (Regulation) Act, 2021 to advise the government, lay down codes of conduct and monitor implementation, with State Surrogacy Boards performing the parallel role in each state.
• Reproductive autonomy: Reproductive autonomy is the principle that decisions about whether, when and how to have children belong to the individual, recognised by the Supreme Court in Suchita Srivastava (2009) and Puttaswamy (2017) as part of personal liberty under Article 21. It is the constitutional counterweight to the state's power to regulate surrogacy.
• Commodification: Commodification is the treatment of something as a market commodity. In the surrogacy debate it refers to reducing women's reproductive labour and children themselves to goods bought and sold, which is the central moral objection to commercial surrogacy.
• Reproductive justice: Reproductive justice is the framework insisting that reproductive rights mean little without the social and economic conditions to exercise them. In the surrogacy debate it asks whether banning paid surrogacy protects poor women or merely removes one of their few well-paid options.
• Best interests of the child: Best interests of the child is the legal standard that the child's welfare is the paramount consideration in decisions about parentage and custody. It underlies the Act's rules deeming the surrogate child the intending couple's biological child and criminalising abandonment.
• K.S. Puttaswamy v. Union of India (2017): K.S. Puttaswamy is the nine-judge Supreme Court decision holding privacy to be a fundamental right, including decisional autonomy over intimate personal choices such as reproduction. It supplies the constitutional language for every current challenge to the Surrogacy Act's exclusions.
• Donor gametes: Donor gametes are eggs or sperm contributed by a third party for use in assisted reproduction. The February 2024 amendment permits one donor gamete in surrogacy where a certified medical condition prevents the couple from supplying both. For UPSC it is the latest refinement of the altruistic-only model.
• GSR 105(E) amendment (2024): GSR 105(E) is the February 2024 amendment to the Surrogacy Rules permitting donor gametes in medically certified cases. For UPSC it shows surrogacy law evolving through executive rule-making after judicial prompting.
• MRKH syndrome: MRKH (Mayer-Rokitansky-Kuster-Hauser) syndrome is a congenital condition in which a woman is born without a uterus, making natural pregnancy impossible. It was the medical fact behind Arun Muthuvel (2023). For UPSC it is the human case that moved the law.
• Arun Muthuvel v. Union of India (2023): Arun Muthuvel v. Union of India (2023) is the Supreme Court decision permitting surrogacy with a donor egg for a woman with MRKH syndrome. For UPSC it is the judgment that forced the 2024 donor-gamete amendment.
• Warnock Committee (1984): The Warnock Committee (1984) was the UK inquiry that produced the first systematic ethics of assisted reproduction, recommending statutory regulation. For UPSC it is the origin point of the global regulatory vocabulary.
• Human Fertilisation and Embryology Authority (HFEA): The Human Fertilisation and Embryology Authority (HFEA) is the UK's statutory regulator for fertility treatment and embryo research, created on the Warnock Committee's recommendation. For UPSC it is the model regulator India studied.
• Infertility (WHO, 2023): The WHO reported in April 2023 that about 1 in 6 people globally experience infertility. For UPSC the figure establishes why assisted-reproduction regulation is a mass social question, not a niche medical one.

Practice questions