THE LEGAL DILEMMAS OF SURROGACY AND ART: THE NEED FOR INCLUSIVE REFORMS
Shruti Jha
LL.B, IV Sem.
School of Law
Manav Rachna University, Faridabad
Date : 20th Feb, 2025
In 2018, a well-known case in Mumbai highlighted the legal and ethical complexities surrounding surrogacy in India. A couple, after years of infertility struggles, opted for surrogacy. However, before the child’s birth, the intended father passed away. Due to the lack of clear legal provisions, the surrogate mother was left in a legal limbo—who would be the legal guardian? Could the mother claim full rights over the child? The hospital refused to hand over the baby, citing ambiguity in surrogacy laws. This case reflects the pressing need for reforms in surrogacy and Assisted Reproductive Technology (ART) laws in India. Jan Balaz v. Anand Municipality (2009) In this case, a German couple commissioned a surrogate mother in Gujarat. However, German laws did not recognize surrogacy, and the child was denied German citizenship. The Indian government also refused to grant the child Indian citizenship, leaving the baby stateless. This case highlighted the legal complexities surrounding surrogacy, parentage, and nationality and played a role in shaping India’s surrogacy regulations.
Major Issues in Surrogacy and ART Laws:
- Restrictions on Commercial Surrogacy
The Surrogacy (Regulation) Act, 2021, permits only altruistic surrogacy, where the surrogate mother cannot receive monetary compensation except for medical expenses. This aims to prevent the exploitation of poor women but has also driven surrogacy underground. Many argue that banning commercial surrogacy takes away a woman’s right to make decisions about her body and deprives economically weaker women of financial support.
- Exclusion of Certain Groups
The law allows only married Indian couples with proven infertility to opt for surrogacy. Single parents, live-in partners, and LGBTQ+ individuals are excluded, raising concerns about discrimination. With changing family structures, the law does not align with modern realities. Countries like Canada and the UK recognize surrogacy for diverse family models, setting an example for India to reconsider its stance.
- Lack of Legal Clarity on Parentage
In ART procedures like sperm or egg donation, determining legal parentage can be complicated. If a dispute arises—such as one partner refusing responsibility—courts struggle to decide parental rights. The absence of clear guidelines leads to emotional distress and legal conflicts.
- Potential Exploitation of Surrogate Mothers
While the law mandates ethical treatment of surrogates, enforcement is weak. Some surrogates, especially from economically weaker backgrounds, may be coerced into surrogacy under family or societal pressure. Without financial compensation, their medical and post-pregnancy care remains uncertain, raising serious human rights concerns.
- Unregulated Fertility Clinics
Many ART clinics in India operate without proper licensing, leading to unsafe medical practices. The ART (Regulation) Act, 2021, seeks to regulate clinics, but enforcement remains weak. Cases of failed procedures, embryo mix-ups, and unethical medical practices continue to surface, highlighting the need for stricter monitoring.
The Way Forward
Expand Eligibility – The law should include single parents and LGBTQ+ individuals to uphold reproductive rights.
Legal Clarity on Parentage – Clear guidelines on the rights and responsibilities of biological and intended parents are essential.
Stronger Protections for Surrogates – Financial security, medical insurance, and counseling should be mandatory.
Strict Regulation of ART Clinics – Regular audits and licenses can prevent unethical medical practices.
Conclusion
While India’s surrogacy and ART laws aim to bring order to reproductive technology, they also create barriers. A balanced approach that ensures regulation without restricting individual rights is necessary for a fair and ethical surrogacy framework.
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