• Recently, a petition was filed before Delhi High Court, challenging the exclusion of a single man and a woman having a child from surrogacy and demanded the decriminalization of commercial surrogacy.
  • The petitioners have challenged their exclusion from availing surrogacy under the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021.
  • The Petitioner argued that the personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
  • Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Surrogacy (Regulation) Act, 2021

  • Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
  • It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
  • The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.


  • One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.
  • The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution.
  • Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
  • Overall, this step indirectly denies children to the couples choosing to embrace parenthood.
  • In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth.
  • Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
  • In an altruistic surrogacy, there is no third-party involvement.
  • A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process.
  • Overall, a third party helps both the intended couple and the surrogate mother navigate through the complex process, which may not be possible in the case of altruistic surrogacy.


  • Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).
  • A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).
  • It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
  • It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.




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