Surrogacy (Regulation) Act, 2021: Key Provisions, Concerns and Way Forward (UPSC Indian Society)
Salient features of India's Surrogacy Regulation Act 2021, eligibility criteria, altruistic surrogacy debate, concerns over reproductive autonomy and exclusion of LGBTQ+ and singles.
The Surrogacy (Regulation) Act, 2021 was enacted by Parliament to curb unethical commercial surrogacy and bring India’s booming assisted-reproduction industry under a formal regulatory regime. For a decade before the law, India had functioned as a global surrogacy hub, drawing couples from the West because of low costs, weak regulation and easily available poor women as surrogates. Complaints of exploitation, trafficking and abandonment of children born with disabilities pushed the government to first issue guidelines, then a Bill, and finally this law, read together with the Assisted Reproductive Technology (Regulation) Act, 2021. For UPSC aspirants, the Act touches GS I (women, society, family), GS II (governance, welfare legislation) and ethics papers.
What is Surrogacy and Why Regulate It?
Surrogacy is an arrangement in which a woman, the surrogate, agrees to carry and deliver a child for an intending couple, and hand the baby over after birth. Broadly, there are two types: altruistic surrogacy where the surrogate is not paid beyond medical and insurance costs, and commercial surrogacy where she receives a separate fee. The 2021 Act permits only altruistic surrogacy and bans commercial arrangements outright.
Regulation became urgent because unregulated surrogacy in India had produced a visible pattern of abuse: poor women used as repeat surrogates, contracts that denied them any decision-making power, and foreign commissioning parents walking away when the baby was born with complications.
Salient Features of the Act
The Act sets up a tight, state-supervised framework with clear eligibility filters and a ban on the money element.
| Provision | What the Act Says |
|---|---|
| Form of surrogacy allowed | Only altruistic; no monetary compensation beyond medical costs and insurance |
| Intending parents | Legally married Indian couple with proven infertility |
| Surrogate mother | A close relative of the couple, married with her own child, can be a surrogate only once |
| Gametes | Surrogate cannot provide her own gametes |
| Child's status | Deemed the biological child of the intending couple |
| Abortion | Requires written consent of surrogate and authorisation of appropriate authority |
| Oversight | National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) |
| Clinics | All surrogacy clinics must register with the appropriate authority |
Penalties are stiff: commercial surrogacy, abandonment of the child, exploitation of the surrogate or sex-selection attract imprisonment up to ten years and fines up to Rs 10 lakh.
Concerns and Criticism
Despite its protective intent, the Act has drawn sharp criticism from women's groups, legal scholars and the reproductive-rights community.
- Excludes large segments of society. LGBTQ+ persons, live-in couples, single men and single parents are barred. Single divorced and widowed women between 35 and 45 were added later, but the core exclusion remains.
- Altruistic-only model is paternalistic. Asking a close female relative to carry a child without compensation trades one form of pressure for another. Bodily autonomy of the surrogate is not genuinely respected when she is expected to go through pregnancy out of family "compassion".
- Black-market risk. A blanket ban on commercial surrogacy may push the practice underground, producing worse exploitation than a well-regulated commercial regime.
- "Close relative" is undefined. The core eligibility filter for the surrogate is left vague, inviting arbitrary enforcement.
- Narrow definition of family. Limiting access to married heterosexual Indian couples denies reproductive liberty to many would-be parents.
- Weak role for commissioning parents on abortion. They cannot compel termination even if the foetus carries serious abnormalities.
ART Act, 2021: The Companion Law
The Surrogacy Act must be read with the Assisted Reproductive Technology (Regulation) Act, 2021, which regulates IVF, gamete banks and ART clinics. Together they set up a two-tier regime: ART Act governs the clinics and donors, the Surrogacy Act governs the carrier and the contract.
India's Situation Today
Before 2021, India's surrogacy industry was estimated at over USD 400 million annually. Post-enactment, registered clinics have dropped sharply as many have shut or migrated to pure ART services. The National Surrogacy Board has begun notifying rules, and states have slowly set up their boards, though implementation capacity varies widely.
Latest Developments (2024-26)
- March 2023 amendment allowed use of donor gametes for intending couples when one partner suffers a specific medical condition, reversing a contentious earlier bar.
- 2024 Supreme Court interventions have expanded access: the Court permitted a single unmarried woman to access surrogacy in specific cases, signalling judicial discomfort with the narrow family definition.
- Global gender parity and family-policy debates in 2024 (Global Gender Gap Index 2024 ranking India 129 of 146) have renewed scrutiny of laws that restrict women’s bodily autonomy.
- Women's Reservation Act, 2023 (Nari Shakti Vandan Adhiniyam) brings broader attention to how welfare laws imagine women, including in reproductive contexts.
- Caste-census movement and MPI 2024 findings on health deprivation have put vulnerable women, the typical surrogate pool, back in policy focus.
UPSC Relevance
| GS Paper | Linkage |
|---|---|
| GS I | Role of women, family structure, society |
| GS II | Welfare schemes, governance of vulnerable groups |
| GS IV | Ethics of commodification of the body, autonomy vs paternalism |
| Essay | Women's autonomy, technology and law |
Model prompts:
- "Altruistic surrogacy is as exploitative as commercial surrogacy, only better disguised." Discuss.
- Examine the Surrogacy (Regulation) Act, 2021 in light of the right to reproductive autonomy under Article 21.
A balanced answer should acknowledge the Act's genuine gains (end of unregulated exploitation, registered clinics, child parentage clarity) while flagging its exclusionary design and the need for LGBTQ+ inclusion, clearer definitions and a rights-based rather than status-based frame.