Right To Reproductive Autonomy And The Lack Of Inclusiveness Of The Surrogacy (Regulation) Act, 2021

Sandra Esther Savio, Christ (Deemed to be University)

ABSTRACT

Surrogacy is one of the most common forms of Assisted Reproductive Technology (ART), where the surrogate mother conceives and gives birth to a child for the intended couple. In India, surrogacy is regulated under the Surrogacy Regulation Act, 2021, which allows only altruistic surrogacy to be availed by intending couple and women only. This led to the law excluding a spectrum of individuals and couples namely single parents, foreign couple, LGBTQ+ individuals and couples. Thereby ceasing these individuals and couples from availing these technologies for procreation and also discriminates based on their marital status and gender for the same. Although, the Supreme Court of India, has recognised the right to procreation under Article 21 of the Constitution of India, still the legislation and the Parliament fails to recognises this right of these individuals and couples. Concerning the same, the paper contends that under Section 2 (r) and (s) of the Surrogacy (Regulation) Act,2021 the definition of intending couple and woman includes married, divorced women and widow but excludes single parents, foreign couple, LGBTQ+ individuals and couples which is violating their right to reproductive autonomy and equality enshrined under right to life guaranteed under Article 21 of the Constitution of India.

Keywords: Surrogacy, intended couple and woman, procreation, reproductive autonomy and equality.