Governance of surrogacy in India has been multi-faceted. Whereas commercial surrogacy was previously allowed, the current legislation is focused on altruistic surrogacy. The Surrogacy Regulation Act 2021 as defines ‘altruistic surrogacy’ as surrogacy with no pecuniary incentives for the surrogate mother, with only necessary expense allowance for medical, insurance or such prescribed purposes In September 2024, in a case brough on by six intending couples and a woman, all who are unable to conceive naturally due to certain medical conditions and are opting for Surrogacy, Justice BV Nagarathna and Justice N Kotiswar Singh of the Supreme Court of India pivoted towards compensation to the surrogate mother, suggested an indirect method of compensation via a designated authority rather than the intending couple “You don’t have to pay directly to the lady, the Department pays. You will have to deposit”, and such compensation is to be regulated by a system. This is an unprecedented attempt at safeguarding the rights and interests of the surrogate mother.

The order needs to be understood in the backdrop of the development of surrogacy legislation in India. Commercial surrogacy was unofficially allowed after 2002, via the Indian Council of Medical Research (ICMR) guidelines which provided neither express legal sanctions nor prohibition on commercial surrogacy. Consequently, India has become the surrogacy hub of the world. The ICMR issued further guidelines to regulate surrogacy arrangements in 2005. Accordingly, the surrogate mother would be entitled to monetary compensation from the couple for agreeing to act as a surrogate. Such payments would cover all genuine expenses associated with the pregnancy, without any involvement from the Assisted Reproductive Technology (ART) centre.

In 2008, the Baby Manji Yamada case became the foundation for the ban of commercial surrogacy in India. After the birth of Baby Manji Yamada, the intended father had to return to Japan as he was facing visa issues, but Baby Manji Yamada was left behind in India. The aftermath involved jarring concerns on the morality of surrogacy contracts, including the then Health Minister of India stating – “it’s time India had a law on surrogacy since cases such as the recent controversy involving a Japanese couple and an Indian surrogate mother are no longer sporadic and often lend themselves to commercial exploitation”. Additionally, referencing the Baby Manji Yamada and the subsequent surrogacy judgements the Law Commission Report of 2009 not only concluded that concluded that India is a conducive target for foreign couples and that the industry for ART was worth around USD 3 billion but also that “the need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.” Furthermore, as noted in 2010, the transnational surrogacy also gave rise to concerns of citizenship.

Moreover, as per Section 4 the conditions for allowing surrogacy are that the intending couple should be infertile, the intended couple does not have any children, the surrogacy is altruistic and does not have any commercial incentives, and the children are not produced for sale, prostitution or any other forms of exploitation. The 2022 Rules shed light on the medical conditions necessitating gestational surrogacy, primarily concerning itself with the biological inability of the intended parents to conceive despite every endeavour to do so, including IVF. The intention of the legislation as enunciated by the Additional Solicitor General on behalf of the Union of India in the hearing before the Supreme Court is clear: that of banning commercial surrogacy and safeguarding the welfare of the child. However, the unsaid intention of the legislation seems to be to safeguard the ‘right to parenthood’, which considering India’s socio-economic background would be pari passu the ‘right to life and personal liberty’ guaranteed by Article 21 of the Indian Constitution as interpreted by Justice Chelameswar “the personal decisions of the individual about the birth and babies called ‘the right of reproductive autonomy’ is a facet of a ‘right of privacy.

Furthermore, Section 41 makes commercial surrogacy punishable by fine and imprisonment up to five years, putting the ‘desperate surrogate mothers’ in a difficult situation. Research suggests that financial incentives force marginalized women into surrogacy. While a blanket ban could serve as a deterrent, it is likely to open up surrogacy to the black market thereby leaving out the unwitting victims of surrogacy from the protection of the law.

On the one hand, commercial surrogacy will result in exploitation, but on the other hand, altruistic surrogacy discounts the monetary value of the nine-month gestation-ship and labour; the middle ground as the Supreme Court of India in Arun Muthuvel v. Union of India pronounced would be a state regulated system that acts as an intermediary between the intended parents and the surrogate mother. The proposed mechanism by the Apex Court would provide two-fold protection to the surrogate mother – first, ensure the surrogate mothers are compensated for more than just necessities and second, to have in place a regulated database to ensure that a surrogate mother is not exploited repeatedly.