In the ever-evolving world of reproductive technology, surrogacy stands out as one of the most debated and emotionally complex methods of becoming a parent. At its surface, it seems like a remarkable scientific breakthrough – a woman carrying a baby for someone else. But underneath, it raises profound legal, ethical, emotional, and social questions that cannot be brushed aside.

Understanding Surrogacy – The Basics

Surrogacy is an arrangement in which a (the surrogate mother) agrees to become pregnant and give birth to a baby for another individual or couple (the intended parents). Female This can happen in two primary forms:

1. Traditional Surrogacy – where the surrogate's own egg is used, making her the biological mother.
2. Gestational Surrogacy – where the surrogate carries an embryo created via IVF using the egg and sperm of the intended parents or donors. Here, she has no genetic connection to the child.

"In India, only gestational surrogacy is permitted under law."

A Medical Boon, But an Emotional Storm

For couples dealing with infertility, surrogacy is often seen as a last ray of hope to have a biological child. But what is often overlooked is that surrogacy is not just a biological journey of giving birth to a child, it is a deeply emotional experience for all involved.

Imagine this: A surrogate mother feels the baby grow inside her for nine months, attends every scan, every check-up, goes through morning sickness, discomfort, labor pains – only to hand over the child immediately after birth.

It is emotionally intense, especially in cases where a genuine bond forms between the surrogate and the unborn child, sometimes leading to disputes or legal challenges when a surrogate refuses to give up the baby.

This is not a hypothetical scenario. Globally, and even in India, such cases have reached courts and sparked a debate about rights, responsibilities, and emotional boundaries.

The Legal Framework in India – Surrogacy (Regulation) Act, 2021

India was once a global hub for commercial surrogacy, especially for foreign couples. The lack of regulation led to numerous instances of exploitation of poor women, abandonment of babies, and unethical medical practices.

To address this, India introduced the Surrogacy (Regulation) Act, 2021, which brought a sea change in the legal approach to surrogacy.

Key Features of the Act:

• Only altruistic surrogacy is legal – No monetary compensation except for medical expenses and insurance.
• Commercial surrogacy is banned – Hiring a woman for profit to carry a child is a criminal offense.
• Only Indian married couples (heterosexual, 5+ years of marriage, and medically proven infertility) can opt for surrogacy.
• No NRIs, foreigners, LGBTQ+ couples, live-in partners, or single individuals are allowed to pursue surrogacy under this law.
• Surrogate mother must:

o    Be a married Indian woman, aged 25-35
o    Have at least one biological child of her own
o    Can become a surrogate only once in her lifetime

Ethical and Social Questions

While the law focuses on preventing exploitation, critics argue that it also limits reproductive autonomy. Should the State decide who can and cannot become a parent? Why deny surrogacy to single individuals or same-sex couples?

A Landmark Plea in Delhi High Court (2023)

A financially sound couple approached the court, requesting permission for commercial surrogacy since they had a willing surrogate and mutual consent.

The court refused, stating:
“Until the law permits commercial surrogacy, we cannot allow any exception. Judicial empathy cannot override legislative intent.”
This shows the judiciary’s alignment with legislative boundaries, even when the emotional appeal is strong.

The Hidden Economics of Altruistic Surrogacy

Altruistic surrogacy may appear noble, but in practice, it creates unspoken expectations and financial dependencies. Often, the intended parents cover everything – travel, nutrition, checkups, and sometimes even long-term support – which can blur the line between altruism and compensation.
Experts suggest this leads to a gray market, where financial arrangements happen unofficially, without legal safeguards for either party.

Emotional Well-being of the Surrogate

Few talk about what happens after birth.

Surrogates often go through postpartum depression, especially when they feel emotionally attached to the child. Without proper counselling support, they may suffer in silence, as society rarely empathizes with their unique position.

A Way Forward – Policy Recommendations

To create a truly ethical and effective surrogacy framework, India needs:

1. Court-Monitored Surrogacy Agreements – ensuring legality, consent, and clarity.
2. Mandatory Counselling – for both intended parents and surrogate mothers to understand emotional and psychological impact.
3. Wider Eligibility Criteria – to include single parents, LGBTQ+ couples, and NRIs under proper regulations.
4. Transparent Compensation Guidelines – to distinguish altruism from disguised commercial surrogacy.
5. National Surrogacy Boards – with doctors, lawyers, psychologists, and child welfare officers for dispute resolution.

Global Overview: Surrogacy Laws in Other Countries

Surrogacy laws around the world vary widely – from being completely banned, to tightly regulated, to open and commercialized. The global legal landscape reflects cultural, ethical, and religious attitudes toward reproduction, motherhood, and commodification of the human body.

1. United States

• Legal Status: Varies by state.
• Commercial Surrogacy: Legal in some states (e.g., California, Nevada); banned or restricted in others (e.g., Michigan, New York until 2020).
• Notable: The U.S. is one of the few countries where commercial surrogacy is legal and regulated, with strong contracts enforceable in court.
• Eligibility: Open to single individuals, same-sex couples, and foreigners.
• Key Safeguards: Detailed legal contracts, psychological counselling, medical screenings.

2. United Kingdom

• Legal Status: Only altruistic surrogacy is allowed.
• Commercial Surrogacy: This is prohibited under the Surrogacy Arrangements Act 1985.
• Payments: Surrogates may only be reimbursed for reasonable expenses.
• Legal Parentage: At the time of birth, the surrogate is the legal mother. Intended parents must apply for a Parental Order after birth to become legal parents.
• Same-sex and single parents: Allowed post-2008 law reforms.

3. Canada

• Legal Status: Only altruistic surrogacy is legal; and commercial surrogacy is banned under the Assisted Human Reproduction Act (2004).
• Eligibility: Open to heterosexual, same-sex, and single parents.
• Compensation: Only reasonable expenses are permitted (e.g., maternity clothing, travel).
• Regulation: Strong federal laws and provincial oversight for contracts and parental rights.

4. Ukraine

• Legal Status: Commercial surrogacy is legal and widely practiced.
• Eligibility: Only for heterosexual, married foreigners with medical infertility.
• Protection: Surrogates have no parental rights over the child. The intended parents are mentioned directly on the birth certificate.
• Popularity: Became a surrogacy hub after India and Thailand restricted foreign surrogacy.

5. Russia

• Legal Status: Commercial surrogacy is legal.
• Eligibility: Open to both Russian citizens and foreigners, including single individuals.
• Regulation: Contracts are recognized; legal parentage is transferred at birth.
• Controversies: Concerns exist about the lack of psychological safeguards for surrogates.

6. Israel

• Legal Status: Altruistic surrogacy is legal and state-regulated.
• Eligibility: Originally limited to heterosexual couples; extended in 2021 to include single men and same-sex couples.
• Approval: Every surrogacy agreement must be approved by a national surrogacy committee to ensure ethics and medical need.

7. Australia

• Legal Status: Altruistic surrogacy allowed in most states; commercial surrogacy is illegal nationwide.
• International Surrogacy: Heavily discouraged. In some states, it is a criminal offence for residents to engage in commercial surrogacy abroad.
• Regulation: State-based surrogacy laws; contracts not always enforceable.

8. Thailand

• Legal Status: Commercial surrogacy was legal until 2015.
• New Law (2015): Bans commercial surrogacy and restricts surrogacy to Thai couples with infertility.
• Foreigners: Banned from using Thai surrogate woman unless one partner is Thai and married for 3+ years.

9. France, Germany, Italy, Spain (Western Europe)

• Surrogacy: Completely banned.
• Legal Stance: Contracts are void; surrogacy considered against public policy and human dignity.
• Penalties: Fines and jail time may apply for those involved in surrogacy arrangements.

10. South Africa

• Legal Status: Altruistic surrogacy allowed.
• Commercial Surrogacy: Prohibited.
• Court Approval: A surrogacy agreement must be pre-approved by a High Court, even before conception.
• Eligibility: Open to all, including same-sex couples and single individuals.

Where Does India Stand?

With the Surrogacy (Regulation) Act, 2021, India aligns more closely with countries like the UK, Canada, and Australia – where altruistic surrogacy is the only permissible route.

However, India's law is much more restrictive, particularly due to:

• Banning single and LGBTQ+ parents
• Limiting eligibility to only Indian married couples
• Prohibiting foreigners altogether

India has shifted from being a global surrogacy hub (especially between 2005–2015) to a protectionist regime focused on preventing exploitation but criticized for curbing reproductive choice.

More Than Just a Medical Choice

Surrogacy is not just a scientific process, and definitely not just a transaction. It is a deeply human journey filled with hope, vulnerability, and moral complexity. Surrogacy redefines what it means to be a mother, what it means to give life, and what it means to share the motherhood. As India tries to balance between ethics and empathy, the challenge lies in creating a system that respects the surrogate, protects the child, and supports the intended parents.

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