A Critical Analysis of India’s Surrogacy Laws and Their Impact on Reproductive Health, Intended Parent and Surrogate Mothers
TL;DR
The research argues that although the legislation intends to curb exploitation, its exclusionary provisions may paradoxically generate new forms of inequality and health insecurity, thereby challenging India’s commitment to universal access to reproductive healthcare under the Sustainable Development Goals framework.
Abstract
Surrogacy constitutes a significant component of assisted reproductive healthcare and falls within the broader framework of reproductive rights and maternal health governance. In the context of India, the rapid expansion of commercial surrogacy prior to legislative intervention positioned the country as a global hub for reproductive medical tourism. While this growth reflected advancements in reproductive health services and affordability, it also exposed significant concerns regarding maternal exploitation, regulatory vacuum and asymmetrical bargaining between intended parents and surrogate mothers. The enactment of the Surrogacy (Regulation) Act, 2021 represents a transformative regulatory shift from an unregulated commercial model to a prohibitionist regime permitting only altruistic surrogacy under narrowly defined statutory conditions. While the legislation seeks to align India’s reproductive governance with the objectives of SDG 3 (Good Health and Well-Being) by promoting ethical medical practices and safeguarding maternal health, it simultaneously raises serious constitutional and public health concerns. This study undertakes a doctrinal and constitutional analysis of the 2021 Act, evaluating whether its restrictive framework genuinely advances reproductive health protection or instead undermines reproductive autonomy, equality and access to safe assisted reproductive technologies. The research argues that although the legislation intends to curb exploitation, its exclusionary provisions may paradoxically generate new forms of inequality and health insecurity, thereby challenging India’s commitment to universal access to reproductive healthcare under the Sustainable Development Goals framework. The study concludes by proposing regulatory reforms that balance maternal protection, reproductive autonomy and public health oversight within India’s federal structure, ensuring that surrogacy governance meaningfully contributes to the realization of SDG 3 while remaining constitutionally sound.