Banning Commercial Surrogacy under the Surrogacy (Regulation) Act, 2021 – The Journal of Indian Law and Society

By Priyam Mitra

I. Introduction

The exploitation of Indian surrogates as the subjects of unregulated, commercial surrogacy, from the early 2000s to the mid-2010s, cannot be overstated. The reason for India being the most attractive option for foreign nationals was the extremely cheap rate prevalent in the country as opposed to other major nations offering such services (Indian surrogates offered their services at almost one-third the cost of similar procedures in the UK and USA)^[1]. Apart from the comparatively low compensation, surrogate-mothers being abandoned if the child born was not accepted by the intending parents, became a common occurrence.^[2] The surrogate-mothers were left bereft of a legal structure wherein they could assert their rights and claim their due.

Following years of transnational exploitation and abandonment of surrogate mothers in the shadows of India’s popular status as the world’s capital for commercial surrogacy, the legislature in early 2010s began the long and arduous process of bringing the unorganised sector of surrogacy under legal regulation. Studies by various ethnographers and scholars surely contributed to the ultimate decision of the legislature promulgating a blanket ban on commercial surrogacy through the Surrogacy (Regulation) Act 2021 (hereinafter referred to as ‘the Act’).^[3]

The State’s significant intervention in traditionally private matters like procreation has been the subject of criticism from various scholars throughout the development of this Act. The way that the state imposes certain restrictions on who can be a surrogate or who can avail of surrogacy, is perhaps more indicative of the state’s moral reasoning than any other rational basis. After the enactment of the Act and the subsequent rules, there have been multiple petitions challenging the constitutionality of these legislations on grounds of arbitrary exclusion of certain communities.[4] The recent PIL instituted by Dr. Aqsa Shaikh challenges the constitutionality of the Act on grounds of discrimination of single unmarried women, same-sex couples, and transgender persons. The unfortunate limitation that this blog encounters is that the arguments I make are in the same paradigm that these legislations themselves posit. This means that even the alternative model that I suggest is helpful only in so far as women surrogates are considered; since the Act itself restricts the definition of surrogates to certain categories of women.

While the merits of banning commercial surrogacy have been the subject of several scholarly works,^[5] the paper restricts itself to merely analysing how the Act has perhaps fallen short of its noble purpose of alleviating exploitation of surrogates. Within this context, the paper would critique the Act on two fronts: the provisions relating to human gametes for surrogacy procedures and inconsistencies within the Act; and the lack of monetary compensation through altruistic surrogacy (a surrogacy process without any monetary compensation except medical expenses and insurance) falling short of its promise and perhaps even exaggerating the exasperation of surrogates.^[6]

II. Who Can Be a Surrogate?

Before critiquing certain provisions of the Act, this section first lays out pertinent recent developments with respect to the relation of the surrogate with the intending couple. This will act as the scaffolding upon which the following sections would be built. The Surrogacy (Regulation) Bill, 2019 was clear in its framing and included a condition that was stated as follows, “no person, other than a close relative of the intending couple, shall act as a surrogate mother […]”^[7]. The reason behind such framing could be reasonably ascertained. Since the aim of the legislation was to only recognize altruistic surrogacy as valid, restricting surrogates to those who were “close relatives” of the intending parents was intended to permit only those to become surrogates who would be most amenable to doing so, without any monetary compensation.

However, as per section 2(zg) of the 2021 Act, a “surrogate mother” is defined as “a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy […]”^[8]. Due to the previous iterations of the legislation, confusion prevailed among scholars and courts alike on whether the surrogate still needed to be a “close relative” of the intending couple. The Karnataka High Court was the first to consider this question when faced with a peculiar case.^[9] The court said that if the purpose of the legislation is to permit only altruistic surrogacies, only “outsiders” can be considered as valid surrogates. Limiting the pool of possible surrogates to relatives would undermine the altruistic nature of surrogacy as familial obligations would cloud the consent and the altruism here would be merely “illusory”^[10].

This interpretation has found support by other High Courts including the Bombay High Court.^[11] The next sections would now discuss two concurrent issues with the Act in its present formulation; the implications of such an interpretation about relation of surrogates and intending parents would be analysed in these sections.

III. Whose Gametes Are They Anyway?

Similar to the provision on the relation of the surrogate and the intending couple, the provisions on the use of gametes for surrogacy was under consideration by the courts. In the Surrogacy (Regulation) Rules, 2022, Form 2, para 1 (d), the rules used to state that for the procedure of surrogacy, it was necessary that both parent’s gametes were used in the procedure. However, the lack in legislative foresight was exposed when cases brought up the seeming irreconcilable tension between this rule and section 2(r) of the Act. Section 2(r) of the Act defines which couple can opt for surrogacy and in doing so, it imposes a condition that the couple must have a medical indication necessitating gestational surrogacy. Rule 14 of the regulations is an extension of this section and state that women may opt for surrogacy if they had any disease which would lead to an abnormal embryo. In the case of Arun Muthuvel v. Union of India,^[12] the Supreme Court disposed of such petitions and held that it was incongruent to believe that the legislature intended these couples to undergo surrogacy with their own gametes when doing so would result in medical complications. Therefore, the Court permitted the use of donor eggs in these cases.

The centre reverted with an amendment to the rules on February 21, 2024.^[13] This amendment gave effect to the Supreme Court’s decision and included an exceptional provision for intending couples suffering from medical conditions; for them, at least one gamete of the intending couple must be used in the process of surrogacy. Section 3(vii) and section 38(1)(e) prohibit the storage of gametes and purchase of gamete for the purpose of surrogacy respectively. These seem to fall in line with the overall purpose of the legislation to ban commercial surrogacy. However, the recent amendments to the Rules, necessitate some changes to these provisions as currently, a conjoined reading of allowance of donor gametes, and a prohibition on storage and trade of gametes, leads to some unfavourable conclusions.

In order to source a gamete, the couple must look towards a person who would be amenable to giving away their gamete altruistically. The 102nd Report of the Department-related Parliamentary Standing Committee on Health and Family Welfare,^[14] pre-empted the use of donor gametes and hence critiqued the storage and trade prohibitions. These prohibitions limit the options that the infertile couple have and even if they are able to find a suitable gamete from an altruistic donor, these procedures take a lot of attempts and prohibiting storage would subject the parties to unreasonable stress and trauma as the procedures are elongated.^[15]

The Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART’) offers some answers to these puzzling provisions.^[16] The Parliamentary Committee had recommended that the ART bill must precede the Surrogacy Regulation Act because the former is much more helpful in dealing with these nuanced questions of medical operations. Section 21 outlays the procedure of the interaction between assisted reproductive technology clinics and banks dealing in gametes. It has detailed instructions with respect to how the intending couple can source these gametes- the process has enough safeguards with respect to exploitation of the gamete donors through the establishment of the banks and ART clinics as intermediaries between the two. This is helpful in two ways- 1) the concerns with respect to storage and availability of gametes are assuaged and 2) the lack of direct contact between the gamete donors and seekers enables the donors to earn a reasonable compensation for their service while still not engaging in commercial surrogacy directly.

In light of the procedures outlined in the ART Act, it is hereby argued that certain changes are necessary to the Surrogacy Regulation Act, 2021 in order to bring conformity to both legislations. This incongruency perhaps exists because of the oversight of the legislature with respect to gamete donors’ role in surrogacy when the couple is declared infertile. Further the procedures and mechanisms of regulated intermediaries outlined in the ART will be useful to posit a solution to the problem outlined in the next section.

IV. Beyond Commercial and Altruistic Surrogacy: A Model of Compensated Surrogacy

As has been reiterated throughout the paper, the primary aim of the legislations was to prevent the exploitation of surrogates at the hands of those who reduced their bodies as merely baby-making machines. What this section seeks to do is to posit a new model of “Compensated surrogacy” as one that is the best suited to the Indian context. To arrive at this conclusion, one must look at the drawbacks of the current “Altruistic surrogacy model”

There are currently three issues with the current model, all contributing to each other’s’ woes. All of these have been identified by different scholars from across the world and parliamentary committees alike:

1) The perils of the intending couples: 

At first, the couple may be delighted at the prospect of obtaining surrogacy at a diminished cost due to the altruistic model. However, a further enquiry reveals first, a rather theoretical objection with respect to the diminishing number of choices they have due to the lack of incentives to the surrogates. The option open to the couples then is to approach the relatives and ask them for such a personal favour. However, due to the social stigma of the couple being ‘infertile’, a lot of couples may not prefer disclosing their situation to their social circles.^[17] Practical experiences of intending couples after the enactment of the act illustrate these points brilliantly.^[18] Many parents find it difficult to find surrogates in a legal scheme wherein no compensation is stipulated for the surrogates. At best, this narrows the potential people they can approach, at worst, this results in systemic exploitation of the young and weak among the familiar circles. The next point will elaborate on this in further detail.

2) The issue of compensation for biological labour:

Covering only the essential medical expenses of the surrogate devalues the excruciating labour process that the surrogate undergoes. While commercial surrogacy can be and has been criticised on several grounds, altruism is another extreme in the same paradigm.^[19] There are long term impacts on the surrogate, socially and biologically both. To assume that altruistic surrogacy is best suited to the Indian context is to presuppose a society wherein the couple is bestowed with a child, the hospitals are paid a hefty amount, the surrogate is left with no real compensation, and still the surrogate is willing to undergo such an arduous process. This conception of the society cannot be more removed to the actual on-ground realities. Further, studies have shown that surrogates have depended largely on the income from this stream and a sudden reduction here would lead them to become more desperate of achieving similar income levels- this leads them to the unregulated, underground surrogacy markets.^[20] This issue is further exasperated when the surrogates are mainly relatives of the intending couple due to the dearth of surrogates willing to undergo the process for no real compensation. In these cases, women can be said to be subject to extreme exploitation due to societal and patriarchal pressures.^[21]

Now if the couple has no real options available due to the two factors outlined, the chances of an underground market prospering increase multi-fold.

3)The possibility of an underground market:

Studies have revealed that surrogacy clinics have indicated previously that they would continue their operation even after commercial surrogacy is banned.^[22] There are perhaps two motivations working in conjunction here. While a lot of clinics reported that they intend to do so to fight for the surrogates, the instinctive reason could be the huge economic potential of commercial surrogacy, even in unregulated arenas. With previously recognised surrogates becoming more desperate, those in power gain even more leverage and the bargaining powers are further tilted in their favour. What position does this leave the surrogates in? The surrogates live in constant fear of social and criminal ostracization and the work they do in the underground markets might not lead to similar wages as they once got. Further, they move to neighbouring countries like Nepal where commercial surrogacy is legal. In these cases, they are subjected to immense objectification and oppression at the hands of their agents.^[23]

V. “Compensatory surrogacy” as the way forward:

To address all the concerns outlined above, the paper argues for a model of “compensatory surrogacy”. This model isn’t new to Indian legal discourse. In fact, parliamentary committee has previously advocated for such a model in light of the above criticisms of the altruism model.^[24] The primary benefit of such a model is that the government centrally determines what a surrogate should get for their service. This compensation must be more than merely covering the surrogate’s medical expenses; it must take into account the mental and biological labour they go through. It is fundamentally different from commercial surrogacy as therein the parties are left to determine the terms of the contract they want to be subjected to. This practically results in the surrogates being subject to unfair terms due to the huge disparity in their bargaining powers. The solution outlined in ART above can be brought back here to argue for a similar structure of organisation wherein the State imposes certain intermediaries in order to prevent the direct exploitation of the surrogates.

The model suggested above has not really been seen in practice in any other jurisdiction. To be clear, the model outlined above posits that like the establishment of ART clinics, other intermediaries must be instituted in the surrogacy procedure so that while the surrogates do receive monetary compensation, the intending parents are not tasked with determining the terms of their contract. This ensures that the gap in bargaining power doesn’t result in direct exploitation of the surrogates. The closest model to this could be seen in Israel wherein the state is directly involved in each step of the process; from approving the couple’s application to validating the terms of the contract that the surrogates are subjected to.[25] While the model has been criticised for unduly increasing the State’s intervention in the reproductive process, it may be argued that such intervention is necessitated in such a sensitive arena prone to oppressive practices.

Particularly in India’s peculiar socio-economic milieu, such an interventionist model with suitable modifications, can be said to be desirable insofar as it alleviates the concerns of both the surrogates and the intending couples with respect to the current model of altruistic surrogacy.  The reason why India’s particular social and economic realities influence this argument can be traced back to the three issues identified with the altruistic model before: the patriarchal nature of Indian society and the possibility of an underground market flourishing due to the lack of other economic opportunities.

Another popular conception among the critics of such a model (the Rajya Sabha Select Committee endorsed this in part) states that providing any sort of additional monetary compensation would lead to the same pitfalls as commercial surrogacy did.^[26] The fundamental moral reasoning behind this position is that female labour in the form of motherhood is a divine proposition that needs to be left outside the materialistic domain.^[27] There are several objections to this strand of morality and perhaps the sharpest of these is the simplest. Recognition of the work of surrogates as divine carriers of children can be best done through ensuring their financial and social liberty. Due to all the factors mentioned above, it must be seen that the current legal landscape doesn’t afford the surrogates the luxury of living a life of dignity and freedom. A model based on compensation for their due work is not a radical one; perhaps it is the most logical way forward of fairly recognizing her work.

Justice Nagarathna in the ongoing proceedings on the matter pertaining to the constitutionality of the Act, recently stated that surrogates are still likely to be paid under the new laws too, the best the government can do is establish a sort of intermediary “surrogate bank” which regulates the compensation that the surrogates receive.^[28] The ideal arrangement would be one wherein commercial surrogacy is permitted but heavily regulated by the State authorities in several ways of acting as intermediaries.^[29] I think this quote by Judith Butler is an appropriate way of concluding the thoughts on this issue:

“For the ‘I’ to launch its critique, it must first understand that the ‘I’ itself is dependent upon its complicitous desire for the law for the possibility of its own existence.”^[30]

[1] Priya Shetty, ‘India’s Unregulated Surrogacy Industry’ (2012) 380(9854) The Lancet 1633.

[2]‘Australian Couple Abandoned Surrogate Indian Baby Because of Gender’, Associated Press, (Canberra, 9 October 2014) <https://www.ndtv.com/india-news/australian-couple-abandoned-surrogate-indian-baby-because-of-gender-676949 > accessed 5January, 2025.

[3] See generally, Amrita Pande, ‘Transnational Commercial Surrogacy in India: Gifts for Global Sisters?’ (2011) 23(5) Reproductive BioMedicine Online 618; Daisy Deomampo, Transnational Reproduction: Race, Kinship, and Commercial Surrogacy in India (NYU Press 2016); The Surrogacy (Regulation) Act 2021.

[4] See Arun Muthuvel v. Union of India [2022] W.P. (Civil) No. 756 of 2022; Dr Aqsa Shaikh v. Union of India and Others