Who Gets To Be A Parent? Addressing Exclusion And Reproductive Rights In India’s Surrogacy Law
- IJLLR Journal
- Jun 15
- 1 min read
Diwash Saibya, LLM (HRDE), Faculty of Law, Banaras Hindu University, Varanasi
ABSTRACT
India’s Surrogacy (Regulation) Act, 2021, establishes a regulatory framework that restricts surrogacy to altruistic arrangements to prevent exploitation. However, this article argues that the Act’s eligibility criteria create systemic exclusions that violate fundamental rights and undermine its goals. Through critical legal analysis, it demonstrates discrimination against single men and unmarried women, non-traditional families, and foreign nationals by mandating access only for married, infertile, heterosexual Indian couples, widowed and divorced women. Furthermore, the Act’s exemption permitting surrogacy for couples with a disabled child perpetuates stigma and raises troubling eugenic implications, conflicting with the Rights of Persons with Disabilities Act, 2016, and constitutional equality guarantees. The analysis extends to the infringement of reproductive autonomy under Article 21, as affirmed by the Supreme Court jurisprudence. While acknowledging protections for children’s rights and surrogate consent, significant privacy concerns under the linked Assisted Reproductive Technology Act, 2021, particularly genetic data linkage to Aadhaar and enforced donor anonymity, remain inadequately addressed. A comparison of South Asian approaches and global human rights standards (ICCPR, CEDAW, CRC) reveals that India’s framework prioritises a restrictive traditional family model over inclusivity. The article concludes by recommending amendments to remove discriminatory barriers, clarify genetic relation rules, strengthen data privacy, and ensure equitable access, aligning the law with constitutional values and societal realities.
Keywords: altruistic surrogacy, eligibility criteria, reproductive autonomy, data privacy, maternity leave.
