Surrogacy in India: The Fight for Inclusivity and Fundamental Rights in Parenthood

(With special inputs from Gethrude Kii & Kritika Kalra)

In an era where the global narrative increasingly supports women's autonomy and the freedom to make personal choices, India presents a contrasting picture, rooted in what some critics describe as archaic legislative practices. At the heart of this controversy is the issue of surrogacy in India — a practice that has offered countless individuals worldwide the chance to fulfil their dreams of parenthood. Yet, in India, the legislative framework surrounding surrogacy imposes restrictions that many find perplexing and discriminatory. 

According to the nation's surrogacy regulations, single women find themselves unequivocally excluded from the option of surrogacy. The law distinctly bars them from accessing surrogacy services, drawing a line that many argue is both arbitrary and unjust. Paradoxically, the Surrogacy (Regulation) Act carves out exceptions for widows and divorcees, allowing them the opportunity to avail themselves of surrogacy procedures. 

Surrogacy in India

Surrogacy is an arrangement, often supported by a legal agreement, where a woman (the surrogate mother) agrees to become pregnant and gives birth to a child for another person or couple, who will become the child's parent(s) after birth. In traditional surrogacy, the surrogate mother is also the biological mother of the child. This means that her own egg is fertilised, typically through artificial insemination, using the sperm of the intended father or a sperm donor. Because the surrogate's egg is used, she is genetically related to the child. While in gestational surrogacy, the surrogate mother is not genetically related to the child she carries. The embryo is created via in vitro fertilisation (IVF) using the egg and sperm of the intended parents or donors, and then transferred to the surrogate's uterus. 

Surrogacy in India is marked by stringent legal frameworks that significantly narrows the path to parenthood for many. The rules related to Surrogacy in India place tight restrictions on who can access surrogacy services, limiting this option exclusively to heterosexual, married couples. This legislative decision effectively sidelines a diverse range of individuals and couples from the surrogacy process, including single individuals, unmarried couples, and members of the LGBTQ+ community.

Ms. X Challenges the Exclusionary Surrogacy Laws in India

During the course of this story, we had the opportunity to speak with a single woman at the forefront of challenging these restrictive surrogacy laws. For reasons of privacy, she will be referred to as Ms. X in this article. Ms. X is a 44-year-old professional in the IT sector, currently embroiled in a legal struggle for her right to surrogacy in India. Ms. X’s story sheds light on the deeply personal impact of the restrictive Surrogacy (Regulation) Act, 2021, on individuals it sidelines.

During our conversation, it was evident that Ms. X is navigating an intensely emotional period, driven by both her desire to become a mother and the legal hurdles that stand in her way. She expressed a deep sense of injustice and frustration with the current state of the law. "The law has been very unjust and unkind to single women. The law is discriminatory. What is the difference between single and divorced? So, does the government mean that if someone marries for namesake and gets a divorce, then that person can still opt for it. But a single woman cannot opt. What is the logic?" she questions, her voice reflecting the pain and disappointment of many in her situation. 

Ms X adds, “This is a patriarchal mindset at play. I have been to doctors and hospitals. I have seen this bias firsthand. Even when I went to labs, they did not treat me well. There is human bias towards it. And now this bias has been carried forward in law." 

The controversies surrounding India's surrogacy laws have not gone unnoticed by the judiciary. For instance, the law's restrictive nature came under direct challenge from the bench of the Delhi High Court recently when the court sought clarity from the Union Government, questioning the rationale behind the discrimination encoded within the Surrogacy (Regulation) Act, 2021. The court asked the government why single women were specifically excluded from the option of surrogacy, while widows and divorcees were permitted access to these procedures. 

Speaking to The Probe, Bhawana Pandey, the advocate for the petitioner Ms. X, raises a critical legal and ethical issue with the Surrogacy (Regulation) Act, 2021. “Our petition challenges specific aspects of the legislation, particularly focusing on the definition of "intending woman" and the exclusion of single, unmarried women from the benefits of surrogacy. By highlighting the inclusion of widows and divorcees but not single, unmarried women, we have argued that the current legislation discriminates without a valid rationale”.

The Outdated Concepts of Marriage and Family

Critics of the surrogacy law in India voice concerns that the framework rests on an outdated understanding of family and parenthood, inherently tying the right to surrogacy to the institution of marriage. This approach, they argue, perpetuates a mediaeval concept of family structures, placing undue emphasis on marriage as the cornerstone for child-rearing. 

Mohini Priya, an Advocate on Record at the Supreme Court of India and the Delhi High Court, is a vocal critic of these regulations. She contends that the laws governing surrogacy in India are not just outdated but require a fundamental overhaul to reflect the realities of modern society. "What the government is really saying is that a single woman is incapable of raising a child on her own. She is incapable of taking care of the child’s physical, emotional, and financial needs and that is why she has been completely excluded from the purview of the Act," Priya states. 

Priya elaborates further on the legal battles surrounding surrogacy laws in India, highlighting a Public Interest Litigation (PIL) that is currently pending in the Supreme Court. “This litigation challenges specific provisions of the Surrogacy Regulation Act and The Assisted Reproductive Technology (Regulation) Act, 2021. One of the focal points of this PIL includes an Interim Application (IA) seeking clarification on whether a surrogate mother must be genetically related to the intending parents. The government's response to this query was that while the surrogate mother need not share a genetic link with the child, the offspring must be genetically related to both intending parents. So, it is more a matter of interpretation and it was brought within a period of two months from the date of the IA in the most hasty manner,” says Priya. 

Surrogacy in India: The Puzzling Contradictions 

The legal landscape surrounding surrogacy in India reveals a puzzling contradiction, particularly in the treatment of single women's rights to parenthood. While The Assisted Reproductive Technology (Regulation) Act, 2021, permits single women to access services such as in-vitro fertilisation (IVF), a starkly different stance is taken under the Surrogacy (Regulation) Act, 2021, which explicitly excludes them from opting for surrogacy. The justification offered for this exclusion is the notion that biological connection and emotional bonding formed through gestation are superior or more valid forms of attachment than those developed through other means, such as surrogacy or adoption.

"The government's rationale is that when a single woman is bearing a child in her own womb, she will be more biologically connected and emotionally bonded with the child vis-a-vis surrogacy. This skewed logic is based on the personal belief system of a few members of the National Surrogacy Board," states Priya. Priya further points out the inconsistency in applying this logic exclusively to surrogacy while ignoring its implications for adoption. "If we go by the same logic, then even adoptions would have the same rationale because the woman has not given birth to the adopted child, but that does not in any way determine the bond between the child and the mother". 

In a recent development, the Centre made amendments to the surrogacy rules, offering a semblance of progress in the otherwise restrictive landscape of surrogacy in India. This modification permits couples, where either partner is certified as having a medical condition, to utilise donor gametes for surrogacy. The new rules explicitly states that for such couples, it is not mandatory for both gametes to originate from the intending couple, thus broadening the scope for individuals to pursue parenthood through surrogacy under specific conditions. However, the amendment maintains the status quo regarding the exclusion of single women, individuals from the LGBTQIA+ community, and couples in live-in relationships from the purview of surrogacy services. 

Supreme Court: A Beacon of Hope

In the backdrop of these legislative changes and continued restrictions, the Supreme Court has stepped into the fray, signalling a potential shift in the legal landscape for surrogacy. The apex court has directed the Centre to clarify its stance by April 15 on the concerns of single women seeking access to surrogacy and the dilemmas faced by intending couples who exceed the age criteria set by the existing regulations.

Dr. Aneesh V. Pillai, an Assistant Professor at the School of Legal Studies in Cochin University of Science and Technology has authored a book titled "Surrogate Motherhood and the Law". He has also done his Ph.D. research on the legal framework surrounding surrogacy in India. "I have spent many years researching the subject. Indian law limits surrogacy to only married heterosexual couples. All other categories are excluded - including single women, homosexual couples, disabled couples. That is against the fundamental right of the individuals. This is very wrong. We need a complete overhaul of the legal framework," asserts Dr. Pillai.

The Fight for Reproductive Autonomy

At the heart of this debate is the concept of reproductive autonomy. The Justice K.S. Puttaswamy vs Union of India (2017) judgement acknowledges that privacy includes the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation. It emphasises that privacy rights encompass the ability to make choices without interference from the state regarding one's bodily integrity and reproductive choices. Although the NALSA verdict does not explicitly discuss reproductive autonomy in detail, its emphasis on self-identification, dignity, and autonomy for transgender individuals inherently supports the broader principle of bodily autonomy, which includes reproductive rights. By acknowledging the right of transgender individuals to self-identify their gender, the verdict upholds the importance of personal autonomy and the right to make decisions about one's own body and life, which are fundamental aspects of reproductive autonomy.

During the course of this story, we also spoke to Arunima Dwivedi, the Central government’s standing counsel, who represents the Union of India in the case before the Delhi High Court. "There are two to three matters before the Delhi High Court. We have already filed our counters in the court. In some matters, the counters have not been issued yet because the matter is subjudice before the Supreme Court. We have not yet proceeded much. Many provisions have been challenged before the Supreme Court, and we are all waiting for the order from the Supreme Court," states Dwivedi.  

As the legal battles over surrogacy unfold in India, the attention of a diverse cross-section of society turns towards the Supreme Court which is expected to deliver a landmark judgement. There's a palpable sense of anticipation and hope that the court will address and dismantle the archaic and discriminatory aspects of the current surrogacy laws in India, which many argue impede fundamental rights and restrict the definition of family in ways that no longer align with modern societal values.