Surrogacy And Personal Liberty
- IJLLR Journal
- Jul 5
- 2 min read
Jyoti, Shivangi Mehta & Dr Richa Ranjan, Swami Devi Dyal Law College
ABSTRACT
Surrogacy law in India has become a critical intersection of personal liberty, equality, and the state's duty to protect vulnerable individuals. The Surrogacy (Regulation) Act, 2021 permits only altruistic surrogacy—barring commercial arrangements—to prevent exploitation of women, allowing reimbursement solely for medical expenses and insurance . While this curbs commodification of childbirth, it also restricts access to reproductive technologies based on marital status, sexual orientation, and gender identity, raising constitutional concerns .
Under Article 21 of the Indian Constitution, the Supreme Court has affirmed that reproductive autonomy and bodily integrity constitute fundamental components of personal liberty . In Suchita Srivastava v. Chandigarh Administration (2009), the Court recognized a woman’s right to make reproductive choices—including pregnancy termination—as an inseparable aspect of her personal liberty . This reasoning was bolstered by K.S. Puttaswamy v. Union of India (2017), wherein the Court enshrined the right to privacy and decisional autonomy as intrinsic to Articles 14, 15, and 21.
Internationally and domestically, scholars caution that blanket bans on commercial surrogacy may harm surrogate mothers who rely on it for economic survival, potentially driving the practice underground where safeguards vanish . Feminist and human rights commentators advocate for a regulatory model that simultaneously prevents exploitation and upholds reproductive autonomy.
In conclusion, while the Surrogacy (Regulation) Act, 2021 addresses critical ethical concerns, its restrictive scope invites constitutional scrutiny. A balanced approach—anchored in dignity, equality, and bodily autonomy— is necessary to reconcile state regulation with individual freedoms.
Keywords: Personal Liberty under Article 21, Reproductive Rights and Constitutional Law, Assisted Reproductive Technology (ART) Regulation, Surrogacy (Regulation) Act, 2021, Bodily Autonomy and Legal Rights Commercial vs. Altruistic Surrogacy, Right to Privacy in Reproductive Choices, Judicial Interpretation of Surrogacy, Suchita Srivastava v. Chandigarh Administration, Women’s Rights and Surrogacy, Ethical Regulation of Surrogacy, Human Dignity and Reproductive Autonomy, Bioethics in Surrogacy Agreements, State Intervention in Reproductive Decisions
