By PVS Sailaja
“Motherhood is not just about giving birth; it is the most sacred experience of creation.”
The Journey of motherhood has long been revered as one of the most profound expressions of love, sacrifice, and creation. It embodies not only the nurturing of life but also the emotional and spiritual bond that transcends biology. Yet, even this sacred role has not remained untouched by commercial exploitation.
Over time, disturbing reports began to emerge—ranging from the deaths of surrogate mothers and egg donors to child custody disputes, the abandonment of babies born with disabilities, and incidents of trafficking and coercion involving vulnerable women and girls. In Baby Manji Yamada v. Union of India (2008), the SC exposed ethical and legal voids in commercial surrogacy, leading to calls for regulation.
Later, in Devika Biswas v. Union of India (2016), the Court affirmed that reproductive rights are a fundamental part of Article 21. Law Commission of India, in its 228th Report (2009), strongly recommended banning commercial surrogacy while allowing altruistic surrogacy under a strict regulatory framework.
These grave concerns led the Indian government to take legislative action through the Surrogacy (Regulation) Act, 2021, which banned commercial surrogacy and permitted only altruistic surrogacy, restricted to Indian citizens and NRIs. Similar bans in countries like Thailand, Nepal, Mexico, and Cambodia have forced the commercial surrogacy industry to shift to new, less regulated regions such as Ukraine, Georgia, Laos, Malaysia, Argentina, Colombia, Nigeria, Kenya, and South Africa.
This shift reflects a broader post-colonial dynamic where economic disparities and systemic gender inequities enable the relocation of such industries to the Global South—precisely as feminist scholars had long warned. Between 2020 and 2025, Hyderabad and Visakhapatnam witnessed a surge in illegal surrogacy and child-trafficking cases, with authorities exposing a major racket involving the sale of babies for up to ₹35 lakh after purchasing them from poor women for just ₹90,000.
DNA tests led to 8 arrests linked to this scam, operated under the guise of IVF treatments. Officials estimate at least a dozen such fraud cases tied to a single clinic, with 4–5 trafficking incidents reported annually. Though 158 fertility centres are registered in Hyderabad, concerns remain over the operations of unlicensed and hidden clinics.
The prediction that women in economically disadvantaged nations would become the new surrogacy frontier, often working under exploitative conditions for meagre compensation, has now materialised, highlighting the urgent need for globally harmonised ethical regulation that protects the dignity of motherhood rather than commodifies it.
As per the Surrogacy (Regulation) Act, 2021, and the amended Rules of 2024, only altruistic surrogacy is permitted in India, meaning the surrogate mother cannot receive any financial compensation beyond medical expenses and insurance. Commercial surrogacy remains banned. Surrogacy is allowed only for Indian married heterosexual couples (woman aged 25–50 and man 26–55) and single women (widowed or divorced) aged 35–45, provided they have no surviving biological or adopted child and a medical need for gestational surrogacy certified by a District Medical Board.
Only Indian citizens and Overseas Citizens of India (OCIs) are eligible; foreigners are not allowed. A genetic link is mandatory, and procedures must be conducted through ART-registered surrogacy clinics. Parental rights are established at birth with a Parentage Order from a First Class Magistrate. The surrogate must obtain an eligibility certificate from the Appropriate Authority. As of the 2024 amendment, egg or sperm donation is permitted under specific medical conditions, ensuring the process remains ethical, regulated, and medically justified.
As India deliberates a ban on commercial surrogacy, concerns are growing that such a move may inadvertently push the practice underground, exacerbating exploitation rather than preventing it. Replacing commercial surrogacy with an altruistic-only model risks reinforcing patriarchal expectations of self-sacrifice, where women—especially daughters-in-law—may be coerced into bearing children for relatives under social or familial pressure.
Critics further warn that a ban could foster unregulated black markets, as evidenced by India’s persistent issues with illegal organ trade and the circumvention of the 2015 transnational surrogacy ban by relocating procedures to countries like Nepal and Kenya. The demand for infertility solutions remains high, and infertile couples are unlikely to abandon the option altogether, especially when adoption remains inaccessible or undesirable for many.
In this context, we have to think of a shift from prohibition to regulation. Drawing from the 102nd Report of the Rajya Sabha and field research, it proposes a robust Surrogacy Regulation Authority (SRA), modelled on the Central Adoption Resource Authority (CARA), to license and monitor clinics, ensure fair contracts, enforce health and financial protections, and offer support systems for surrogates. Surrogates should be above 21, with at least one biological child, and must undergo counselling before signing legally binding contracts in their preferred language.
Payments should be non-cash, partly upfront, and include protections even in cases of miscarriage. Clinics must maintain transparency through public disclosures of average payments, and both surrogates and intended parents should be educated about their rights and responsibilities. Limiting IVF cycles, requiring informed consent for medical interventions, mandating postnatal care, and including surrogacy ethics in medical curricula are also recommended.
Furthermore, states should clarify laws around citizenship for surrogate-born children to avoid legal entanglements like the Baby Manji case. Vocational training and education should accompany surrogacy support to enable women to transition into sustainable livelihoods.
Ultimately, a ban on commercial surrogacy, even in its best-case scenario, risks marginalising women further, while a well-enforced regulatory framework could empower them with legal safeguards, medical protections, and socio-economic dignity. India’s track record with regulatory bodies like the National Regulatory Authority proves such a model is viable. Rather than criminalising reproductive labour, the state should aim to ensure that surrogacy is conducted ethically, transparently, and with respect for women’s autonomy and rights.
