Surrogacy in India: Constitutional Challenges, Ethical Concerns, and Comparative Legal Perspectives

Abstract

The Surrogacy (Regulation) Act, 2021 represents a major shift in India’s approach to assisted reproduction, replacing its commercial surrogacy industry with a strictly regulated altruistic model. It permits surrogacy only for Indian heterosexual married couples and Overseas Citizens of India (OCI) cardholders with certified medical indications, while criminalizing commercial surrogacy entirely. The exclusion of single individuals, live-in partners, and LGBTQ+ community members has raised constitutional concerns under Article 21 and questions of equality and non-discrimination. Although the Act aims to prevent exploitation, protect surrogates and children, and ensure ethical transparency, its restrictive framework has created barriers, lacks provisions for mental health support, and stands in contrast to inclusive models in countries such as Canada, the United Kingdom, Israel, and several U.S. states. Recent policy changes, such as allowing married couples with medical conditions to use donor gametes, reflect the evolving nature of surrogacy regulation. This paper critically evaluates the Act’s socio-legal implications, its alignment with constitutional rights, and its position within global surrogacy practices, proposing reforms to promote fairness, inclusivity, and balanced protection for all stakeholders.