The 2021 Surrogacy Act: Navigating the Path to Parenthood

Overview

The Surrogacy (Regulation) Act, 2021, along with the Assisted Reproductive Technology (Regulation) Act, 2021, has fundamentally altered the framework for surrogacy in India. The overarching goal of these laws is to transition India from a hub for commercial surrogacy to a regime of ‘altruistic surrogacy’, prioritizing the ethical treatment of surrogate mothers and the welfare of the child. However, the stringent eligibility criteria and the exclusion of certain categories of intending parents have led to continuous legal scrutiny and public debate, prompting recent amendments and ongoing judicial interventions.

Key Points

• The Surrogacy (Regulation) Act, 2021, exclusively permits altruistic surrogacy for eligible Indian heterosexual married couples, strictly prohibiting commercial surrogacy.
• A significant amendment in February 2024 allowed the use of donor gametes (egg or sperm) in altruistic surrogacy if one partner has a certified medical condition necessitating it, a reversal of a previous blanket ban.
• The Act continues to face challenges for excluding single individuals, live-in partners, and LGBTQ+ couples from accessing surrogacy, prompting ongoing petitions and judicial examination of their reproductive rights.

Analysis

The Surrogacy (Regulation) Act, 2021, effective from January 2022, represents India’s firm stance against commercial surrogacy, which had previously raised ethical concerns regarding the exploitation of surrogate mothers. The Act defines ‘altruistic surrogacy’ as a process where the surrogate mother receives no monetary compensation other than medical expenses and insurance coverage, typically from a close relative.

The eligibility criteria for intending parents are highly specific: they must be Indian heterosexual married couples, with the wife aged between 23 and 50 years and the husband between 26 and 55 years. They must also have a medical certificate of proven infertility. The surrogate mother must be a married woman aged 25-35 years, having at least one biological child, and can only act as a surrogate once in her lifetime.

A crucial development occurred in February 2024, when the Central Government amended the Surrogacy (Regulation) Rules, 2022, to permit the use of donor gametes. This amendment allows an intending couple to use a donor egg or donor sperm if one of the partners is medically certified to have a condition preventing them from contributing their own gametes. This change came after significant public outcry and interventions, including a Supreme Court matter where a woman with a rare medical condition (MRKH Syndrome) was unable to use her own eggs under the previous rules. This amendment provides relief to many couples who were previously excluded.

Despite this relaxation, the Act continues to draw criticism for its narrow definition of ‘intending couple,’ which excludes single individuals, unmarried couples, and same-sex couples. Petitioners have approached the Supreme Court, arguing that such exclusions violate fundamental rights to equality (Article 14), life and personal liberty (Article 21), and the right to form a family. While the Supreme Court has been examining these issues, it has largely adopted a cautious approach, often reiterating the legislative intent to prioritize the welfare of the child and prevent exploitation. However, the Court has also shown willingness to consider the nuances, for example, agreeing in January 2025 to examine the specific age limits imposed by the laws for both intending parents and surrogate mothers, acknowledging concerns about their practicality and potential arbitrariness.

The legislative and judicial journey of surrogacy laws in India reflects a complex balance between ethical concerns, technological advancements in reproductive medicine, and evolving interpretations of fundamental rights in a diverse society. The Act’s focus on registered clinics and the establishment of National and State Surrogacy Boards aims to bring greater regulation and transparency to the process.

Conclusion

The Surrogacy (Regulation) Act, 2021, represents a significant regulatory framework for assisted reproduction in India, effectively banning commercial surrogacy and promoting altruistic arrangements. The recent amendment allowing donor gametes demonstrates a responsiveness to some of the initial practical challenges. However, the Act remains a subject of intense debate and legal challenge due to its restrictive eligibility criteria and the exclusion of certain groups from accessing surrogacy. The Supreme Court’s ongoing engagement will continue to be vital in shaping the interpretation and potential future amendments, aiming to strike a more inclusive balance between ethical regulation and the reproductive rights of all citizens.