| Mr Anas Khan | Assistant Professor | Career College of Low, Bhopal | anask.official14@gmail.com |
ABSTRACT
Surrogacy, a substitute mode of reproduction, enables women to carry children for others who are unable to conceive or carry a pregnancy to full term. Surrogacy has become popular worldwide with the developments of medical processes such as In-vitro Fertilization (IVF) and Artificial Insemination (AI). In India, the Surrogacy (Regulation) Act, 2021 was brought to regulate issues related to surrogacy, especially prohibiting commercial surrogacy and only acknowledging altruistic surrogacy. The ban on commercial surrogacy in India, for example, throws key questions concerning the rights of surrogate mothers to earn their livelihood and exercise sovereign decisions regarding their bodies. The ban could violate their basic right under Article 21 of the Indian Constitution, which includes the right to life, personal liberty, and means of livelihood. This paper explores the human rights issues relating to surrogate mothers and their right to privacy, reproductive choice, informed consent, and decent compensation. The analysis discusses how prohibition of commercial surrogacy affects women’s rights to livelihood and bodily control, calling for an even approach that secures adequate regulation and protection from exploitation while upholding the constitutional rights of surrogate mothers. Also discussed in the paper is how although the Surrogacy (Regulation) Act, 2021 aims to ban exploitation and unethical procedures, its outright prohibition on commercial surrogacy may not be the best approach. A proper regulatory mechanism that protects the rights and well-being of surrogate mothers, yet enables them to exercise free will, is the need of the hour. Such a strategy would reconcile protecting vulnerable women from exploitation with the core human rights of privacy, bodily integrity, and livelihood.
Keywords: Surrogacy, surrogate motherhood, reproductive rights, human rights.
Introduction
Surrogacy, a major medical breakthrough, is a means of alternative reproduction available to infertile couples or individuals who cannot carry a child full-term. Surrogacy entails a woman carrying a child for another couple or single person. The practice, now popular worldwide for enabling infertile couples to have children and leading to family building, is not novel. Surrogacy can be seen in the history of Abraham and Sarah in the Bible and Devaki and Gandhari in the Mahabharata. In the past, surrogacy has taken the form of sexual intercourse between a male and female. This has changed with the development of reproductive technologies like In-Vitro Fertilization (IVF) and Artificial Insemination (AI), which enable conception and delivery without coitus. These techniques are frequently applied by couples who are unable to bear children because of medical complications. Besides, a woman born without a womb, a woman with an unhealthy womb, or one for whom pregnancy is detrimental can gain advantage through surrogate motherhood. In India, a Surrogacy (Regulation) Act, 2021 was passed by the government for regulating surrogacy contracts and handling issues related to surrogacy. Section 2(1)(zd) of the Act defines surrogacy as “a practice whereby one woman carries and gives birth to a child for an intending couple with the intention of transferring such child to the intending couple on birth.” Commercial surrogacy is altogether prohibited by the Act. Surrogacy has become a popular choice not just for barren couples but also for professional couples, homosexuals, and single women and men. In India, the popularity of surrogacy is due to increasing rates of infertility and monetary incentives to women who are ready to lease their bodies. Commercial surrogacy was made legal in India in 2002, but the lack of regulation resulted in numerous unethical practices, exploitation, abandonment of children, and money-making rackets. The absence of legislation to control commercial surrogacy, cheaper medical treatment and easy access to women who would give their wombs on hire for money turned India into a renowned surrogacy destination for people from all over the globe. Consequently, there have been numerous incidents regarding unethical behavior, exploitation within this business, desertion of children conceived through this practice and several rackets conducted all for the absolute purpose of profit maximization in India. Commercialization of surrogacy and technological tampering with reproduction pose serious legal, ethical, and human rights issues around the world. This paper attempts, however, to analyze the human concerns regarding surrogate mothers.ers.
Concept of Surrogate Motherhood
The word “surrogate” comes from the Latin term “surrogatus,” which translates as “appointed to act in place of” or “substitute.” A surrogate mother is a lady who consents to carry and give birth to a child for another. Surrogate motherhood can be a process whereby a woman, who is called surrogate mother, takes gestation and hand over the baby to the intending couple or person in lieu of money,. A surrogate mother is “a woman who is pregnant by artificial insemination (AI) or by the implantation of a fertilized egg produced through in-vitro fertilization (IVF) for carrying the fetus to birth for another individual or individuals,” according to the Merriam-Webster Dictionary. A surrogate mother is a woman who donates her uterus to carry an embryo during pregnancy, usually for an infertile couple, waiving all parental rights upon birth of the child, according to Black’s Law Dictionary. Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021, says that a surrogate mother means “a woman who undertakes to carry a child who is genetically linked to the intending couple or intending woman through surrogacy from the time of implantation of an embryo in her uterus.” Traditional surrogates and gestational surrogates may be involved in surrogacy arrangements. An traditional surrogate mother supplies her own eggs, while the intending father’s or a donor’s sperm is utilized, so the child is genetically connected to her. A gestational surrogate does not have any biological or genetic connection with the child she gives birth to. The intended parents’ or donors’ eggs and sperm are mixed using IVF and then transferred to the gestational carrier. The Surrogacy (Regulation) Act, 2021, acknowledges only gestational surrogates, i.e., the surrogate mother is not allowed to employ her own eggs in the process Section 2 (1) (zg).
The Act outlines specific eligibility criteria for surrogate mothers under Section 4(iii)(b):
- A married woman between 25 to 35 years old with a child of her own can be a surrogate or help in surrogacy by donating her egg (Section 4(iii)(b)(I)).
- Any willing woman can act as a surrogate and undergo surrogacy procedures (Section 4(iii)(b)(II)).
- The surrogate mother cannot provide her own gametes for surrogacy (Section 4(iii)(b)(III)).
- A woman can act as a surrogate only once in her lifetime (Section 4(iii)(b)(IV)).
- The surrogate mother must obtain a medical and psychological fitness certificate for surrogacy from a registered medical practitioner (Section 4(iii)(b)(V)).
Surrogacy is increasingly popular in India, with surrogate mothers almost doubling annually. Studies show that practically one-third of Indian women, with poverty, marginalization, patriarchal society, and poor literacy levels, are susceptible and resort to surrogacy for financial gains. Economic exploitation by the agents and pressure from families, especially rural families, are prevalent. While surrogacy offers money, it also tends to result in exploitation, hence the need to analyze the legal and human rights of surrogate mothers. Prior to discussing the legal and human rights issues of surrogate mothers, one needs to analyze whether these women are entitled to rent out their wombs and serve as surrogate mothers. Right to be surrogate mother is founded on the doctrines of privacy and reproductive rights. In the leading case of Devika Biswas v. Union of India(2016) 10 SCC 726, the Supreme Court of India held that the right to reproduction was an intrinsic part of the right to life under Article 21 of the Indian Constitution. This includes a woman’s right to conceive a child, deliver a baby, and parent a child, and her right over privacy, dignity, and body integrity.
Equally so, the Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 A.P. 156 recognized reproductive rights to be an integral right, highlighting the significance of reproductive autonomy as a component of the right to privacy. The court held that the autonomy of an individual over their body and mind, including reproductive autonomy, comes within the purview of Article 21. This is further fortified by the ruling in Hema Vijay Menon v. State of Maharashtra\t(2015) 5 AIRBom. 370, which added “the right to motherhood” under Article 21. Since the right of privacy takes in the choice of giving or conceiving a child, it must by logical extension also include the right to give birth to a child for another. Choices of pregnancy, egg donation, abortion, or not getting pregnant are all parts of a woman’s control over her own body. If a woman decides to offer her womb to ensure that an infertile couple has a child, state intervention should not be extensive, as long as it does not encroach upon another’s rights. The right to be a surrogate thus falls under privacy and personal freedom, which is a basic human right. A total prohibition of commercial surrogacy and restricting it to altruistic surrogacy might abrogate women’s reproductive rights and compromise their bodily autonomy by taking away the autonomy to make decisions over their own bodies. Such a restriction might be viewed as abrogating fundamental rights by curtailing a woman’s choice and source of income.
Human Rights Concerns of Surrogate Mothers in India: Constitutional Challenges and Legal Ambiguities
Right to Practice a Profession or Occupation: Article 19(1)(g)
Article 19(1)(g) guarantees to all citizens the fundamental right to practice any profession, or to carry on any occupation, trade, or business. The complete prohibition of commercial surrogacy under the 2021 Act, therefore, raises critical questions of constitutional validity. For many economically disadvantaged women, surrogacy is not merely a choice but a legitimate form of livelihood. The Act’s ban on commercial surrogacy—without proportional justification or compensatory frameworks—effectively restricts a woman’s autonomy to engage in reproductive labor for income.
In Indian Hotel and Restaurant Association v. State of Maharashtra [(2013) 8 SCC 519], the Supreme Court struck down a total ban on bar dancing, observing that such a prohibition infringed upon women’s right to practice their profession under Article 19(1)(g). Applying similar reasoning, surrogate motherhood—where a woman offers reproductive labor for compensation—cannot be arbitrarily banned without infringing on her professional and bodily autonomy. A blanket prohibition, as opposed to a regulated model, fails the test of reasonableness and violates the right to choose dignified work.
Right to Livelihood: Article 21
The right to livelihood, as interpreted by the Supreme Court, is an essential component of the right to life under Article 21. In Olga Tellis v. Bombay Municipal Corporation [AIR 1986 SC 180] and Consumer Education and Research Centre v. Union of India [(1995) 3 SCC 42], the Court held that deprivation of livelihood tantamounts to denial of life itself. Surrogacy, especially commercial surrogacy, presents a financially viable alternative to informal labor or unskilled employment for many marginalized women. By banning commercial surrogacy without creating equivalent livelihood opportunities or compensation mechanisms, the state indirectly denies women an avenue for economic self-sufficiency.
Moreover, surrogacy often offers greater economic returns than other forms of physical labor such as domestic work or factory jobs. Preventing access to this opportunity disproportionately impacts economically vulnerable women, exacerbating gender and class inequalities and infringing on their constitutionally protected right to livelihood.
Right to Compensation and Protection Against Forced Labor: Articles 21 and 23
Under the current altruistic surrogacy model permitted by the Act, surrogate mothers are entitled only to reimbursement of medical expenses and insurance coverage. There is no provision for direct financial compensation for the bodily labor of pregnancy, nor for loss of wages due to inability to work during gestation. Section 2(1)(q) of the Act mentions insurance coverage but provides no standardization regarding the quantum, adequacy, or scope of such coverage.
This denial of remuneration amounts to economic coercion and unpaid labor, thereby invoking the protection under Article 23, which prohibits trafficking and forced labor. The Supreme Court in People’s Union for Democratic Rights v. Union of India [AIR 1982 SC 1473] held that any form of labor where individuals are compelled to work for remuneration below the statutory minimum wage due to poverty or helplessness amounts to “forced labor.” In the context of surrogacy, the absence of payment for the intensive physical, emotional, and psychological labor associated with pregnancy, while requiring women to sacrifice health and time, constitutes a form of exploitation and forced labor, veiled under the guise of altruism. Furthermore, the lack of compensation creates a market vacuum that may drive surrogacy underground, increasing the risk of trafficking, black-market arrangements, and unsafe reproductive practices.
Right to Informed Consent
The Act commendably includes a provision under Section 6 that mandates informed and written consent from the surrogate mother, ensuring she is made fully aware of all medical procedures, potential risks, and long-term implications before embryo implantation. Consent must be provided in a language the surrogate understands, which is a positive step in safeguarding autonomy. Additionally, the provision allowing withdrawal of consent before implantation respects the surrogate’s right to bodily integrity. However, the absence of enforceable standards for counselling, third-party legal guidance, or oversight mechanisms leaves scope for coercion and misrepresentation, especially in vulnerable populations.
Right to Legal Representation and Literacy Support
Most surrogate mothers come from underprivileged backgrounds, with a significant percentage being illiterate or semi-literate. Research conducted in Anand, Gujarat—once a hub for commercial surrogacy—revealed that nearly 50% of surrogate mothers could not read or understand the contracts they were signing. Without access to independent legal counsel, these women remain unequipped to negotiate or understand complex medical, financial, and legal terms. To prevent exploitation, the law must guarantee the right of surrogate mothers to obtain independent legal advice, free from conflict of interest with clinics or commissioning parents.
Right to Autonomy over Pregnancy Termination
The Surrogacy (Regulation) Act, 2021, appropriately upholds the surrogate mother’s autonomy with respect to medical termination of pregnancy (MTP). In line with the Medical Termination of Pregnancy Act, 1971, it affirms that abortion can only occur with the written consent of the surrogate mother, thereby reinforcing her reproductive autonomy. This safeguard prevents coercion by commissioning parents and ensures that the surrogate’s bodily integrity remains paramount throughout the process.
Right to Breastfeeding and Postpartum Health
Breastfeeding is widely acknowledged as essential to the health of both mother and child. The Department-related Parliamentary Standing Committee (102nd Report on the Surrogacy Bill, 2016) advocated for provisions enabling surrogate mothers to breastfeed or donate milk to Human Milk Banks. The Karnataka High Court in Smt. Husna Banu v. State of Karnataka [WP No. 16729/2021] recognized breastfeeding as a fundamental right under Article 21, affirming that lactating mothers must not be deprived of this physiological function, which—if unaddressed—may lead to complications like engorgement, mastitis, and infection. Despite these findings, the 2021 Act does not address the postnatal rights or needs of surrogate mothers, particularly in relation to breastfeeding or health support. The absence of such provisions is a glaring oversight that undermines maternal health and bodily rights.
Right to Maternity Benefits
While amendments to the Central Civil Services (Leave) Rules, 1972 grant 180 days of maternity leave to surrogate and commissioning mothers employed in government services, the Maternity Benefit (Amendment) Act, 2017, which applies to private sector employees, does not extend paid leave to surrogate mothers. This inconsistency neglects the fact that surrogate mothers undergo the same physical toll of pregnancy and require time for recovery and health restoration. It is therefore imperative that the law be amended to ensure paid maternity leave for surrogate mothers, limited to a medically determined period necessary for their recuperation, regardless of the altruistic nature of the arrangement.
Concluding Reflections: Balancing Innovation, Ethics, and Rights in Surrogacy Law
Surrogacy stands at a unique crossroads of medical advancement, social transformation, and human empathy. It offers a beacon of hope to infertile couples, single individuals, and members of non-traditional families—including LGBTQ+ persons—who long to experience the profound journey of parenthood. By enabling another woman to carry a child on their behalf, surrogacy creates an extraordinary bond rooted in compassion, cooperation, and shared aspiration. However, this extraordinary arrangement also raises intricate legal, ethical, and human rights concerns that demand careful and nuanced regulation. The Surrogacy (Regulation) Act, 2021, enacted with the stated objective of protecting surrogate mothers from exploitation and commodification, provides a structured framework by which to regulate surrogacy arrangements in India. It mandates stringent eligibility conditions, promotes altruistic surrogacy, and prohibits the commercialization of reproductive labor. While well-intentioned, the law’s blanket ban on commercial surrogacy raises significant questions about women’s autonomy, bodily integrity, and socio-economic rights, particularly for poor and marginalized women who may see surrogacy as a viable path toward economic empowerment.
At the heart of this legal debate lies a constitutional dilemma: whether a woman’s fundamental right to practice any profession or occupation under Article 19(1)(g) and her right to livelihood under Article 21 can be justifiably curtailed by an outright prohibition on compensated reproductive labor. As Indian jurisprudence has consistently held, the state may regulate but not eliminate a citizen’s right to work or to earn a living—especially when that work does not inherently violate public morality or safety. As seen in cases such as Indian Hotel and Restaurant Association v. State of Maharashtra and Olga Tellis v. Bombay Municipal Corporation, the Supreme Court has affirmed the constitutional necessity of preserving livelihood choices, particularly for economically vulnerable groups. Surrogacy, when consensual and properly regulated, is not an act of moral degradation or exploitation—it is a form of bodily labor that involves physical, emotional, and psychological investment. The act of “renting one’s womb”, often framed pejoratively, in truth reflects a deeply sacrificial service rendered by a woman to help others build families. A surrogate mother enables the continuation of life, providing a child to those who cannot biologically bear one—a profoundly human and dignified contribution to society. The complete ban on commercial surrogacy, while ostensibly designed to prevent the commodification of women’s bodies, may paradoxically lead to greater harm and exploitation. In the absence of legal avenues, desperate commissioning parents and needy women may turn to underground markets, where legal oversight is absent, medical safeguards are minimal, and human rights are routinely violated. History has shown that prohibition often drives a practice into the shadows, fostering secrecy, illegality, and exploitation, rather than transparency, ethics, and protection. Instead of criminalizing all forms of compensated surrogacy, the real need is effective, compassionate, and participatory regulation. A legal framework that permits ethical commercial surrogacy—with clear contracts, informed consent, health protections, postnatal care, compensation norms, and independent legal representation—would not only safeguard the dignity and rights of surrogate mothers but also uphold the aspirations of commissioning families. This approach would align with the true spirit of the Act: regulation, not prohibition. Moreover, a rights-based surrogacy law must integrate gender justice, economic equity, and reproductive autonomy into its design. It should respect the surrogate mother not merely as a vessel but as an empowered decision-maker—an equal party in the arrangement, with her health, labor, and choices fully protected and legally recognized. Access to legal counsel, maternity benefits, fair compensation, and post-birth psychological support are essential for ensuring that surrogacy does not become unpaid or coerced labor disguised under altruistic ideals.
In conclusion, India stands at a critical juncture. As it aspires to lead globally in both reproductive technology and human rights, it must resist the temptation to impose moralistic bans that suppress individual freedoms and exacerbate inequalities. Instead, the country must design a surrogacy framework that is ethical, inclusive, and constitutionally sound—one that balances medical innovation with compassion, and individual rights with social responsibility. Such a model will not only protect surrogate mothers from harm but will also enable thousands of families to fulfill their long-cherished dreams of parenthood in a manner that is just, humane, and dignified.
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