Regulating Surrogacy in India: Legal Frameworks, Ethical Considerations and Lessons from Global Practices
By Prithivi Raj, Assistant Professor Of Law, Birla Global University, Odisha.
Abstract
As surrogacy practices continue to evolve, understanding the legal and ethical implications of surrogacy contracts is increasingly critical. This paper explores the surrogacy regulatory framework in India, focusing on the Surrogacy (Regulation) Act, 2021, and examines the inherent challenges and ethical concerns. The Act marks a significant shift by banning commercial surrogacy and endorsing altruistic arrangements, yet substantial issues remain in the fair and effective implementation of surrogacy agreements. The analysis begins with a historical overview of surrogacy in India, distinguishing between traditional and gestational surrogacy, and tracing India’s rise as a prominent surrogacy destination. It then critically evaluates the Surrogacy (Regulation) Act, 2021, detailing its provisions, such as the prohibition of commercial surrogacy and the framework for altruistic surrogacy. The paper assesses how the Act addresses earlier regulatory gaps and examines the enforceability of surrogacy contracts under the Indian Contract Act, 1872. Further, the study discusses the ethical and societal concerns related to surrogacy, including the risks of commodification, potential exploitation of surrogate mothers, and the impact on the legal status and rights of surrogate children. The paper concludes with recommendations for improving the regulatory framework. It suggests implementing stronger monitoring mechanisms, establishing clearer guidelines for contract enforceability, and introducing ethical safeguards to protect all parties involved. Insights from international practices offer potential amendments to the Surrogacy Act, aiming to enhance fairness and ensure robust protection within surrogacy arrangements.
Keywords: Surrogacy Regulation, Legal Enforceability, Ethical Concerns, Altruistic Surrogacy, International Comparisons.
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