REGULATING SURROGACY IN INDIA: BALANCING ETHICAL CONCERS WITH LEGAL REALITIES

AUTHOR – MEKALA GOPIKA SRI HARSHITA, STUDENT AT AMITY LAW SCHOOL, AMITY UNIVERSITY, MUMBAI

BEST CITATION – MEKALA GOPIKA SRI HARSHITA, REGULATING SURROGACY IN INDIA: BALANCING ETHICAL CONCERS WITH LEGAL REALITIES, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 5 (9) OF 2025, PG. 18-73, APIS – 3920 – 0001 & ISSN – 2583-2344.

This article is published in the collaborated special issue of Amity Law School, Amity University, Mumbai and the Institute of Legal Education (ILE), titled “Emerging Trends in Law: Exploring Recent Developments and Reforms” (ISBN: 978-81-986345-1-1).

INTRODUCTION

Surrogate motherhood in India has been a hot topic of legal, ethical, and social discussions for quite some time. Once dubbed the “surrogacy capital of the world,” India became a go-to destination for countless intended parents from around the world, attracted by relatively lower costs and minimal regulations. However, this lack of oversight raised serious concerns about the potential exploitation of surrogate mothers, the commercial exploitation of women’s bodies, and the rights and welfare of children born through surrogacy. In light of these issues, the Indian government has introduced a set of laws that culminated in the Surrogacy (Regulation) Act, 2021, radically changing the legal and ethical landscape of surrogacy in the country.

The Surrogacy (Regulation) Act, 2021, marks a clear transition from commercial to altruistic surrogacy. Under this new law, only altruistic surrogacy is allowed. This means that surrogate mothers can only be reimbursed for medical expenses and insurance costs, with no extra financial rewards permitted. The law explicitly bans commercial surrogacy, aiming to guard against the exploitation of economically vulnerable women who might be attracted to financial offers. This shift tackles long-standing ethical issues surrounding the commodification of motherhood and the risks of coercion and abuse in commercial agreements.

Additionally, the Act lays out strict eligibility criteria for both intended parents and surrogate mothers. Only married heterosexual couples in India, married for at least five years and fitting certain age brackets (women aged 23-50 and men aged 26-55), can pursue surrogacy. They must provide a medical certificate confirming infertility and should not have any surviving biological children, unless they’re dealing with life-threatening conditions or disabilities. Single women—widowed or divorced—aged between 35 and 45 may also qualify, but single men and same-sex couples are clearly excluded, sparking ongoing debates about the fairness and inclusivity of India’s surrogacy laws.

As for surrogate mothers, the law requires that they be a close relative of the intended parents, married, between 25 and 35 years old, and have at least one biological child of their own. Moreover, a woman can only serve as a surrogate once in her lifetime, and every surrogacy arrangement must be sanctioned and registered with the proper authorities. The Act also creates national and state-level regulatory boards to oversee and monitor surrogacy practices, ensuring that all parties’ interests are protected.