This blog is in continuation to the previous blog on Surrogacy Regulation Act, 2021 – A step forward or a step back? (PART I)
Are children born through surrogacy given the same rights as children born naturally?
Children born through surrogacy are also afforded significant legal protection under the Act. The intended parents are legally obligated to accept the child born through surrogacy and cannot abandon the child for any reason. The law grants children born via surrogacy the same rights as any biological child, including rights under inheritance and guardianship laws. In August 2024, the Bombay High Court held that an egg donor has no legal right on the child in a case of surrogate birth and cannot claim to be its biological parent.
Who cannot opt for surrogacy – has the law been fair?
While the law reflects a growing acceptance of surrogacy, it limits access to married couples, divorced or widowed women and excludes men, same-sex couples, and unmarried partners. Before the law was finalised, some members of the Parliament argued that the law should be updated to align with recent changes like the decriminalisation of same-sex relationships and the Transgender Persons Act. Some also suggested that surrogacy should be available to single women and couples living together. This focus on marital status is presently being challenged in the Supreme Court through multiple petitions. In one such case involving a 44-year-old unmarried woman seeking permission for surrogacy, a bench led by Justices B.V. Nagarathna and Augustine George Masih noted that it is not common in Indian society for single women to bear children outside of marriage, although this practice is prevalent in some western countries. The court emphasised its concern with preserving the institution of marriage.
Despite these restrictions, a woman’s reproductive autonomy is a fundamental right under Article 21 of the Constitution of India. By tying eligibility for surrogacy to marriage, the law restricts this autonomy and limits access to a specific segment of society. In contrast, countries like the UK, Netherlands, and South Africa, which also permit only altruistic surrogacy, do not require individuals to be married to participate in surrogacy arrangements.
A further issue with the Act is its exclusion of live-in partners, despite Indian courts having recognised such relationships as valid. Many couples in live-in arrangements raise families together, yet at present they are barred from accessing surrogacy, raising concerns about equal treatment under the law.
Moreover, the Act prohibits same-sex couples from participating in altruistic surrogacy, reinforcing traditional notions of family structure. Indian law, along with societal and religious norms, asserts that a child’s development requires both parents to be of opposite sexes. While the decriminalisation of homosexuality was a progressive step, the integration of inclusive constitutional principles into public policy is still a work in progress.
Conclusion
The Act is a significant step in safeguarding surrogates and ensuring ethical practices in surrogacy. However, the Act has drawn criticism for excluding single men, same-sex couples, and unmarried partners from surrogacy. As societal norms evolve, there is a growing demand to make the law more inclusive, ensuring that all individuals, regardless of marital status or sexual orientation, can access surrogacy and exercise their reproductive autonomy. The ongoing legal challenges to these limitations may shape future reforms, paving the way for a more progressive surrogacy framework in India.
Today in India, there are many single fathers, even more so celebrities who have opted for children through surrogacy which creates a false sense of what the law permits – creating a larger gap between the reality and the law in India. It remains to be seen how the apex court of India will rule and if the law will evolve over time to allow for inclusion of single women, single men, same sex couples, unmarried couples and for that matter married couples, without any medical necessity, simply wanting to opt for a surrogate?
