Altruistic Surrogacy Regulation 

Altruistic surrogacy refers to an arrangement where a woman (the surrogate mother) carries a child without receiving any monetary compensation, except for medical expenses and insurance coverage. India has moved decisively toward regulating surrogacy by permitting only altruistic surrogacy and prohibiting commercial surrogacy.

1. Concept of Altruistic Surrogacy

• The surrogate mother is typically a close relative (as per earlier rules; later relaxed in practice through amendments/rules).
• No financial gain beyond:
  • Medical expenses
  • Insurance coverage
• Intended to prevent exploitation of women and commercialization of reproduction.

2. Statutory Framework in India

(A) Surrogacy (Regulation) Act, 2021

The primary legislation governing surrogacy in India.

Key Features:

• Only altruistic surrogacy permitted
• Commercial surrogacy banned
• Eligibility criteria for:
  • Intended couple (married, specific age limits)
  • Single women (widow/divorcee allowed under amendments)
• Surrogate mother:
  • Must be married (with a child of her own)
  • Age restrictions apply
• Mandatory:
  • Medical and psychological fitness
  • Insurance coverage for surrogate

(B) Assisted Reproductive Technology (Regulation) Act, 2021

• Regulates fertility clinics and ART procedures
• Works alongside surrogacy law

3. Objectives of the Law

• Prevent exploitation of poor women
• Curb surrogacy tourism
• Ensure ethical reproductive practices
• Protect rights of:
  • Surrogate mother
  • Intended parents
  • Child born through surrogacy

4. Rights and Obligations

(A) Surrogate Mother

• Right to medical care and insurance
• No parental rights over the child
• Cannot be exploited or coerced

(B) Intended Parents

• Legal parents of the child
• Responsible for child’s welfare

(C) Child Born Through Surrogacy

• Deemed biological child of intended parents
• Full legal rights (inheritance, identity)

5. Key Restrictions

• Ban on commercial surrogacy
• No advertisement of surrogacy services
• No middlemen or agents
• One-time surrogacy allowed for a woman
• Strict regulation of clinics

6. Judicial Approach in India

Before statutory regulation, courts played a crucial role in shaping surrogacy law.

7. Landmark Case Laws

1. Baby Manji Yamada v. Union of India (2008)

• One of India’s first surrogacy cases.
• Supreme Court recognized validity of surrogacy arrangements.
• Highlighted need for legal regulation.

2. Jan Balaz v. Anand Municipality (2009, Gujarat HC)

• Concerned citizenship of children born through surrogacy.
• Court held that children born in India through surrogacy are Indian citizens.
• Raised issues of cross-border surrogacy.

3. Suchita Srivastava v. Chandigarh Administration (2009)

• Recognized reproductive autonomy as a fundamental right under Article 21.
• Relevant to decisions regarding surrogacy.

4. K.S. Puttaswamy v. Union of India (2017)

• Established right to privacy.
• Includes reproductive choices and family planning decisions.

5. Devika Biswas v. Union of India (2016)

• Emphasized reproductive rights and dignity of women.
• Highlighted need for ethical medical practices.

6. ABC v. State (NCT of Delhi) (2015)

• Recognized rights of single parents.
• Relevant for evolving surrogacy eligibility norms.

8. Criticism of Altruistic Surrogacy Model

(A) Over-Restriction

• Limits reproductive choices
• Excludes many intended parents

(B) Practical Difficulties

• Finding a willing surrogate without compensation

(C) Potential for Hidden Commercialization

• Informal payments may still occur

(D) Exclusion Issues

• LGBTQ+ community largely excluded
• Unmarried couples face barriers

9. Recent Developments

• Rules have been relaxed to:
  • Allow widows and divorced women
  • Ease “close relative” requirement
• Increasing judicial scrutiny of restrictive provisions

10. Comparative Perspective

• USA: Commercial surrogacy allowed in some states
• UK: Altruistic model (similar to India but more flexible)
• France/Germany: Surrogacy largely banned

11. Conclusion

India’s shift to altruistic surrogacy regulation reflects a strong policy choice to prioritize ethics over commercialization. While the framework aims to protect women and children, it also raises concerns about accessibility and autonomy. Courts continue to play a vital role in balancing fundamental rights with regulatory safeguards, shaping the evolving landscape of reproductive law in India.