Executive Summary
The prohibition of commercial surrogacy in India through the Surrogacy (Regulation) Act, 2021 marks a major transformation in India’s reproductive rights framework. India was once regarded as the global centre for commercial surrogacy because of inexpensive fertility services and the availability of economically vulnerable women willing to act as surrogate mothers. However, concerns regarding exploitation, trafficking, unethical medical practices, and commodification of women’s bodies eventually led to legislative intervention.
The enactment of the Surrogacy (Regulation) Act, 2021 prohibited commercial surrogacy and allowed only altruistic arrangements where surrogate mothers receive no compensation except medical expenses and insurance coverage. The State justified the prohibition as a measure necessary to protect vulnerable women from exploitation. However, critics argue that the legislation reflects excessive State paternalism because it denies women the autonomy to make decisions concerning their reproductive labour.
This article critically examines whether the commercial surrogacy ban genuinely protects women or whether it imposes patriarchal control under the guise of welfare. The paper analyses constitutional principles under Articles 14, 19, and 21 of the Constitution, feminist theories concerning reproductive labour, and important judicial precedents including Suchita Srivastava v. Chandigarh Administration and Justice K.S. Puttaswamy v. Union of India. The article argues that while exploitation concerns are legitimate, an outright prohibition may not be constitutionally proportionate. A regulated commercial framework with strong safeguards could better balance autonomy, dignity, and protection.
Keywords:Commercial Surrogacy, Reproductive Rights, Feminist Jurisprudence, Bodily Autonomy, Constitutional Morality, Exploitation, Paternalism
INTRODUCTION
The evolution of assisted reproductive technologies has fundamentally transformed the understanding of family, parenthood, and reproductive rights in contemporary society. Among these technologies, surrogacy has emerged as one of the most controversial legal and ethical issues across jurisdictions. Surrogacy enables an intended parent or couple to have a child through another woman who carries the pregnancy on their behalf[1]. While the practice has provided hope to infertile couples and individuals unable to conceive naturally, it has simultaneously generated debates concerning exploitation, commodification, consent, and reproductive autonomy.
India occupied a unique position in the global surrogacy market for nearly two decades. Following the effective legalization of commercial surrogacy in 2002, India rapidly became a preferred destination for reproductive tourism due to comparatively lower medical costs, advanced fertility infrastructure, and the availability of economically vulnerable women willing to act as surrogate mothers. Fertility clinics flourished in states such as Gujarat, Maharashtra, and Delhi, generating an industry estimated to be worth billions of rupees.
However, the rapid commercialization of surrogacy also exposed serious legal and ethical concerns. Numerous reports emerged highlighting exploitative contracts, lack of informed consent, poor living conditions of surrogate mothers, absence of post-pregnancy care, and the treatment of women as mere reproductive instruments. International surrogacy arrangements further complicated issues relating to citizenship, parentage, and nationality of children born through surrogacy. These developments eventually prompted legislative intervention.
The enactment of the Surrogacy (Regulation) Act, 2021 marked a decisive policy shift. The legislation prohibits commercial surrogacy entirely and permits only altruistic surrogacy under stringent conditions. The law was presented as a welfare-oriented measure intended to protect women from exploitation and preserve the dignity of motherhood[2].
Nevertheless, the legislation has attracted severe criticism from constitutional scholars, feminists, and reproductive rights activists. Critics argue that the law adopts a paternalistic approach by assuming that women are incapable of exercising informed consent regarding reproductive labour. They contend that by prohibiting compensation, the State denies women economic agency while simultaneously controlling female bodies through moral regulation.
This article seeks to critically examine whether the commercial surrogacy ban constitutes a genuine protective measure or whether it reflects unconstitutional paternalism inconsistent with modern constitutional values of dignity, privacy, equality, and autonomy[3].
[1]Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia University Press 2014) 39.
[2]Baby Manji Yamada v. Union of India (2008) 13 SCC 518.
[3] Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (Law Com No 228, 2009) 51.