The enactment of the Surrogacy (Regulation) Act, 2021, marks a significant shift in India's approach towards assisted reproductive technologies and reproductive rights. While the legislation seeks to prevent the commercialisation of surrogacy and protect surrogate mothers from exploitation, it simultaneously imposes stringent restrictions on access to surrogacy services. The transition from a relatively liberal regime to a heavily regulated framework raises important constitutional and human rights concerns relating to reproductive autonomy, privacy, dignity, equality, and the right to form a family.
This paper critically examines the extent to which the Surrogacy (Regulation) Act, 2021, has transformed reproductive choice into a matter of regulatory control. The study analyses the constitutional validity of eligibility restrictions imposed by the Act, particularly with respect to single persons, live-in partners, LGBTQ+ individuals, and other excluded categories. Drawing upon judicial precedents recognising reproductive autonomy as an integral component of Article 21 of the Constitution of India, the paper evaluates whether the restrictions imposed by the Act satisfy the tests of reasonableness, proportionality, and non-arbitrariness under Articles 14, 19, and 21.
The paper further explores the tension between the State's obligation to prevent exploitation and an individual's right to make reproductive decisions free from excessive governmental interference. Through a doctrinal and comparative analysis, the study argues that while regulation of surrogacy is necessary, the current framework may unduly restrict constitutionally protected reproductive freedoms. The paper concludes by advocating a rights-based and inclusive regulatory model that balances protection against exploitation with respect for reproductive autonomy and constitutional values.
Publication Date: 2025-03-20