India’s Surrogacy (Regulation) Act, 2021, was intended to protect vulnerable women from exploitation. However, a close look at the law reveals a profound hypocrisy. By banning commercial surrogacy, the Act denies women their economic autonomy while creating a new, unregulated space for familial coercion. Furthermore, its strict eligibility rules for who can become a parent exclude single individuals and the LGBTQ+ community, violating constitutional rights and perpetuating outdated social norms. This paper argues that the law, in its current form, is both discriminatory and impractical, making surrogacy an almost impossible path to parenthood for many and defeating its own purpose of ethical regulation.
Introduction: A Law Built on Contradictions
The Surrogacy (Regulation) Act was a response to ethical concerns surrounding India’s role as a global hub for commercial surrogacy. While the goal of protecting surrogate mothers is essential, the new law has created a contradictory and flawed framework. Instead of a well-regulated system, we now have a law that claims to support surrogacy while simultaneously making it unworkable, all under the guise of “altruism.” This analysis will deconstruct the law to reveal its fundamental hypocrisy.
The Illusion of Altruistic Surrogacy
The Act’s most significant change is the ban on commercial surrogacy, allowing only “altruistic” arrangements where a surrogate, who must be a “close relative,” receives no payment beyond medical expenses. This provision sounds noble but is deeply problematic.
- The Myth of Choice and Compensation: For many women, being a surrogate for compensation was a pathway to economic independence. The law takes this choice away, effectively denying them the right to use their bodies and labor to improve their financial situation. It romantically frames surrogacy as an act of family charity, ignoring the significant physical and emotional work involved.
- The Silent Pressure of Family: By restricting surrogates to close relatives, the Act invites a new kind of exploitation. In many family structures, a woman may face immense social pressure or a moral obligation to become a surrogate, even if she is unwilling. This form of coercion is much harder to regulate and leaves the woman without the financial and legal protections that a commercial contract could have provided.
- Pushing Surrogacy Underground: The near-total ban on compensation and the restrictive conditions will not eliminate the demand for surrogacy. Instead, it is likely to push the practice into an illegal, unregulated black market where both women and intending parents are far more vulnerable to exploitzation and unsafe practices.
Who is Denied the Right to a Family?
The law’s eligibility criteria for intending parents are a clear example of its discriminatory nature. The Act’s narrow focus on a “traditional” family model excludes many people from the right to have a child through surrogacy.
- Exclusion of Single People and LGBTQ+ Couples: The Act defines an intending couple as a legally married man and woman. This directly and explicitly excludes single men, same-sex couples, and unmarried partners. This is a violation of fundamental rights to equality and personal liberty, which includes the right to form a family.
- The Problem with Arbitrary Rules: The law’s rules are often arbitrary and without a clear basis. It sets an age limit for parents and mandates that a surrogate must be married and already have a child of her own. These rules are not only discriminatory but also make it extremely difficult to find an eligible surrogate, even within one’s own family.
An Impractical and Unworkable System
Beyond its ethical and legal failings, the law has created a system that is simply unworkable for most people.
- Finding a Surrogate is Nearly Impossible: The combination of the “close relative” rule, medical requirements, and the social stigma around surrogacy means that finding a willing and eligible surrogate is an almost impossible task.
- The Red Tape and Bureaucracy: The process of getting approval through multiple government bodies is slow and complicated. The administrative burden is so high that it can deter even the most determined couples, making the journey to parenthood a bureaucratic nightmare.
The Path Forward: Towards a Just and Inclusive Law
The Surrogacy (Regulation) Act, 2021, needs urgent and fundamental reform. A truly ethical and effective law should not be built on hypocrisy and exclusion. It should be based on the principles of autonomy, equality, and safety for all parties.
Instead of a ban, we should move towards a model that focuses on well-regulated commercial surrogacy. This approach would:
- Empower Surrogates: Allow for fair, transparent compensation and legally binding contracts that protect the surrogate mother’s rights and well-being.
- Ensure Inclusivity: Extend the right to surrogacy to all individuals, regardless of marital status or sexual orientation, in line with constitutional values.
- Create an Accessible System: Simplify the administrative process to make surrogacy a viable option for those who need it, while maintaining strict health and safety standards.
This would be a genuine step toward a legal framework that respects the dignity of every individual and supports all forms of family.
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