Surrogacy Laws: Evolving Reproductive Rights in India

Recent amendments to India's Surrogacy Rules signal a shift in reproductive rights, balancing legality with inclusivity and diverse family structures.

Surrogacy, facilitated by Assisted Reproductive Technologies (ARTs), is increasingly recognized as a legitimate mode of family-making. Recent amendments to the Surrogacy (Regulation) Rules, 2022, signify a pivotal moment in the legal landscape surrounding surrogacy in India.

Legislative Framework:
The Surrogacy (Regulation) Act, 2021, reflects a significant shift in surrogacy regulation, emphasizing altruistic arrangements and gestational surrogacy facilitated by ARTs like In-Vitro Fertilization (IVF). Commercial surrogacy is prohibited, and only married couples or ever-married single women can seek surrogacy, subject to stringent eligibility criteria. The Act aims to codify surrogacy as a legitimate mode of reproduction within the confines of marriage, while prohibiting commercial exploitation of surrogate mothers.

Clarification on Donor Gametes:
The recent amendment to the Surrogacy (Regulation) Rules, 2022, clarifies the permissibility of using donor gametes in surrogacy arrangements. This amendment expands the scope of permissible surrogacy practices, allowing couples facing medical conditions to utilize donor gametes alongside their own. However, the amendment maintains strict guidelines for single women, emphasizing genetic congruence with intended parents in gestational surrogacy.

Contesting Eligibility Criteria:
The eligibility criteria for surrogacy, particularly centered on marital status, have sparked debates and legal challenges. The exclusionary approach, limiting access to surrogacy based on marital status, is currently under scrutiny in the Supreme Court. Petitions challenging the restrictive eligibility criteria highlight the need for inclusivity and non-discrimination in reproductive rights.

Celebration vs. Critique of ARTs:
The regulation of ARTs and surrogacy reflects a broader societal celebration of reproductive technologies as tools to combat infertility. However, this celebratory narrative often overlooks critical perspectives on the implications of ARTs for family structures and reproductive rights. The uncritical promotion of ARTs reinforces traditional notions of biological relatedness and purity, potentially marginalizing alternative family formations.

Parity in Legal Recognition:
Ensuring parity in legal recognition of different forms of family-making is essential to uphold reproductive rights and combat discrimination. Surrogacy and adoption should be treated as equal choices, without privileging one over the other based on narrow interpretations of biological relatedness. The legislative framework must promote inclusivity and respect diverse family formations, irrespective of genetic ties.

The evolution of surrogacy laws in India reflects a nuanced interplay between societal perceptions, reproductive rights, and legislative reforms. While recent amendments signify progress towards legitimizing surrogacy within a regulated framework, challenges persist in ensuring inclusivity and non-discrimination. Moving forward, it is imperative to prioritize reproductive autonomy, promote diverse family structures, and uphold the principles of equality and justice in surrogacy regulation.