Description

Laws, Justice and Rights for Women in the Modern Era
Editor: Prof. Dr. Yogesh Kumar Gupta, Ishan Ahmad and Premananda Murmu
Published by Universal Academic Books Publishers and Distributors,
New Delhi (India)
ISBN: 978-81-686113-5-1, 2026

Chapter 5

The Surrogacy (Regulation) Act, 2021: A Needs-Based Framework Displacing a Rights-Based Approach to Reproductive Autonomy in India

Dr. Mandeep Kaur
Associate Professor, School of Law, Mahindra University, Hyderabad

Abstract

The Surrogacy (Regulation) Act, 2021 criminalises commercial surrogacy and permits only altru-istic surrogacy, confined to a narrow class of beneficiaries defined by marriage. This paper argues that Parliament thereby substituted a needs-based model of state-rationed access for a rights-based model grounded in reproductive autonomy under Articles 14 and 21 of the Constitution. The paper traces the legislative choice behind this design, maps the statutory architecture of in-clusion and exclusion, tests the central exclusions against the structured proportionality standard settled in Indian constitutional law, and follows the post-enactment amendments and litigation, culminating in the Supreme Court’s recognition in Vijaya Kumari (2025) that the right to a child through surrogacy is an extension of reproductive autonomy under Article 21. The framework, it concludes, is over-inclusive in what it forbids, under-protective of surrogates, and constitutional-ly fragile. A reform direction separating anti-exploitation regulation from the policing of family form is proposed.

Keywords

Altruistic Surrogacy; Commercial Surrogacy; Reproductive Autonomy; Article 21; Proportionality; Needs-Based Regulation.

1. INTRODUCTION

For two decades India occupied a singular position in the global reproductive economy. No bind-ing legislation governed surrogacy. Guidelines issued by the Indian Council of Medical Research in 2005 contemplated paid gestational arrangements, and commercial surrogacy operated lawfully. The Supreme Court acknowledged as much in Baby Manji Yamada v. Union of India, a case that exposed the statutory vacuum surrounding parentage and nationality, and the Gujarat High Court confronted the same vacuum a year later when twins born to an Indian surrogate for a German couple were left effectively stateless. More than 25,000 children were estimated to have been born to Indian surrogates, roughly half for foreign commissioning parents, within a medical-tourism economy of around US$2.3 billion a year. The market rested on a stark asymmetry be-tween affluent, largely foreign intending parents and a gestational workforce of poor women with few alternative economic options.