AAYUSHI MOUDGIL

B.Com LL.B. 2^nd year

UILS, PANJAB UNIVERSITY

INTRODUCTION

Surrogacy is a notable aspect of assisted reproductive technology, that provides hope to individuals and couples who unable to conceive naturally. The legal status of surrogacy differs with countries, with  regulations shaped by ethical, cultural, and societal considerations. India and the United Kingdom (UK) represent two contrasting distinct frameworks, reflecting unique approaches to balancing the interests of surrogate mothers, intended parents, and children born through surrogacy. While India has recently implemented a strict legal regime to curb commercial surrogacy and prevent exploitation, the UK has maintained a more flexible but structured approach, permitting altruistic surrogacy under legal protections. Knowing these differences is essential for assessing the efficacy and consequences of surrogacy laws in both jurisdictions.

II. EVOLUTION OF LEGISLATIVE DEVELOPMENT OF  SURROGACY LAWS

 India 

 The conception of surrogacy in India began gaining attention in the early 2000s, primarily due to the rapid growth of marketable surrogacy services. India soon came a favoured destination for international willing sssparents due to its affordable medical  installations and the absence of strict legal regulations. still, enterprises arose regarding the implicit exploitation of financially vulnerable women acting as surrogates, the lack of legal protection for all parties involved, and ethical enterprises girding the commercialization of reduplication. In response, the Indian government initiated supervisory, leading to the enactment of the Surrogacy (Regulation) Act, 2021. This law prohibited marketable surrogacy, limiting it simply to humanitarian arrangements and assessing strict eligibility criteria for intending parents and surrogate  maters. The Surrogacy (Regulation) Act, 2021,  aims to regulate surrogacy practices in the country. It allows altruistic surrogacy, where the surrogate mother is not compensated beyond medical expenses and insurance coverage. Commercial surrogacy, on the other hand, is strictly prohibited.

The Act specifies that only Indian citizens who are legally married for at least five years and between the ages of 23 to 50 years (wife) and 26 to 55 years (husband) are eligible to commission surrogacy. They must also have a medical condition that prevents them from having a child naturally. The surrogate mother must be a close relative of the intending couple, between the ages of 25 to 35 years, and have a child of her own. She can only be a surrogate once in her lifetime.The Act also establishes the National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology and SurrogacyBoards to oversee the implementation of the law and regulate surrogacy clinics

 United Kingdom 

 Unlike India, the UK has historically approached surrogacy with caution. The Surrogacy Arrangements Act 1985 The Surrogacy Arrangements Act 1985 is a UK law that primarily focuses on prohibiting commercial surrogacy arrangements. It makes it illegal to advertise or broker surrogacy arrangements on a commercial basis, meaning agencies or individuals cannot profit from facilitating surrogacy. While commercial surrogacy is banned, altruistic surrogacy which means where the surrogate mother receives only reasonable expense is not explicitly illegal. However, the Act makes surrogacy arrangements unenforceable in law, meaning the surrogate mother has the right to keep the child even if she agreed to give it up. The Act also restricts advertising related to surrogacy, making it an offense to advertise that someone is seeking a surrogate or is willing to be one. The Surrogacy Arrangements Act 1985 has been amended and interpreted over the years, notably by the Human Fertilisation and Embryology Act 2008, which allowed for parental orders to transfer legal parenthood to the intended parents in certain circumstances. The Act has faced criticism for being outdated and not reflecting modern surrogacy practices, and there are ongoing debates about whether it adequately protects the rights of all parties involved, including the surrogate mother, the intended parents, and the child. Fertilisation and Embryology Act 2008, has further clarified maternal rights and liabilities in surrogacy cases. The Human Fertilisation and Embryology Act 2008 significantly updated the regulations surrounding assisted reproductive technologies (ART) and research involving human embryos. It covers a wide range of areas, including the creation and use of embryos, parental rights, and research practices. One of the key aspects of the Act is its comprehensive regulation of all human embryos outside the body, regardless of how they were created. It also specifically addresses the regulation of “human-admixed” embryos, which are embryos created from a combination of human and animal genetic material for research purposes. The Act maintains the focus on the welfare of the child in fertility treatment decisions, but updates the language to reflect modern family structures, replacing the ‘need for a father with’ ‘the need for supportive parenting’. This change recognizes the diversity of family forms and acknowledges same-sex couples as legal parents of children conceived through donated sperm, eggs, or embryos. Furthermore, the Act prohibits sex selection of offspring for non-medical reasons, reinforcing ethical considerations in assisted reproduction. It also facilitates research by amending restrictions on the use of data collected by the Human Fertilisation and Embryology Authority (HFEA), enabling follow-up studies of infertility treatment. In essence, the 2008 Act aims to ensure ethical and safe practices in assisted reproduction and embryo research, protect the welfare of children born through ART, reflect evolving social norms, and promote research that can advance fertility treatments.

SIMILARITIES IN SURROGACY LAWS OF INDIA AND UK

A significant commonality in the surrogacy regulations of India and the United Kingdom is their support for altruistic surrogacy. Both nations have prohibited commercial surrogacy arrangements, allowing surrogate mothers to receive compensation only for medical and reasonable expenses. This regulatory approach seeks to safeguard women, especially those from disadvantaged circumstances, from exploitation and ensures that surrogacy remains an act of kindness rather than a profit-driven endeavor. The ethical rationale behind this policy is to emphasize the welfare of the surrogate mother and child over the potential for surrogacy to ssbecome a business venture. 

Both legal frameworks share a common emphasis on the need for regulated processes to ensure ethical surrogacy practices. In India, the Surrogacy (Regulation) Act, 2021, has created national and state-level bodies to monitor surrogacy activities and prevent abuse. The UK, likewise, regulates surrogacy through the Human Fertilisation and Embryology Act 2008, which ensures compliance with legal and ethical standards. Despite differences in administrative details, the core principle remains consistent: surrogacy should be a regulated and non-exploitative practice. 

 A more subtle yet equally important similarity is the acknowledgment of surrogacy’s psychological and emotional dimensions. Surrogacy extends beyond medical and legal arrangements, involving profound emotional connections and lifelong consequences for all parties. Both India and the UK recognize this aspect by implementing laws that protect surrogates, ensuring informed consent, offering psychological counselling, and providing legal clarity. This shared approach reflects an understanding that surrogacy is not solely about creating life but also about safeguarding the dignity and rights of those who facilitating.

CONTRADICTIONS IN SURROGACY LAWS IN INDIA AND UK

Despite these similarities, there are striking differences between how surrogacy is regulated in India and the UK. One of the most evident contrasts is who can opt for surrogacy. In India, only heterosexual, married Indian couples who have been married for at least five years and are medically proven to be infertile can opt for surrogacy. The law also specifies age restrictions, allowing only women aged 23-50 and men aged 26-55 to become intended parents. By contrast, the UK allows surrogacy for single individuals, unmarried couples, and same-sex couples, making it a more inclusive legal framework.

Another significant difference is how legal parentage is determined. In India, the intended parents are recognized as the legal parents from the moment the child is born, ensuring that there are no complications regarding parental rights. The surrogate mother does not have any legal claim over the child once the surrogacy agreement is executed. However, in the UK, the legal system initially recognizes the surrogate as the child’s legal mother, regardless of genetic ties. The intended parents must apply for a parental order after the birth to gain full legal custody, which can be a lengthy process. This difference highlights how India prioritizes the rights of the intended parents from the outset, whereas the UK maintains a more cautious approach, ensuring that all parties have legal clarity and time to reconsider their decisions.

The eligibility of the surrogate mother is another point of contrast. Indian law mandates that the surrogate must be a close relative of the intended parents, already married, and have at least one biological child of her own. She can only act as a surrogate once in her lifetime. These restrictions are aimed at minimizing exploitation but also severely limit the availability of surrogates. The UK, on the other hand, does not impose such strict requirements. While it is recommended that surrogates have prior childbirth experience, there is no legal requirement for them to be related to the intended parents. 

While both India and the UK recognize surrogacy as a valuable reproductive option, their legal frameworks reflect different societal and ethical priorities. India’s strict eligibility criteria and immediate legal parentage assignment demonstrate a protectionist approach that prioritizes the intended parents and ensures a controlled surrogacy process. In contrast, the UK’s more inclusive and flexible approach allows a broader range of individuals to pursue surrogacy, albeit with additional legal steps to establish parentage.

At the heart of these legal structures is the shared commitment to preventing the exploitation of women and ensuring the best interests of the child. While the specifics may differ, both India and the UK seek to balance the rights of surrogates, intended parents, and children in a manner that reflects their unique cultural and legal landscapes. Surrogacy, after all, is more than a legal transaction—it is a deeply personal journey filled with emotions, challenges, and ultimately, the hope of creating a family.

IMPACT OF DIFFERENCES

Surrogacy isn’t just a legal contract—it’s an emotional and life-changing journey for intended parents and surrogates alike. The laws governing it shape more than just legal outcomes; they influence who gets to build a family, how surrogates are treated, and the challenges children might face in securing their legal identity. India and the UK take very different approaches to surrogacy, and while both seek to protect those involved, their policies often create hurdles that complicate what should be a joyful process.

IMPACT ON INTENTED PARENTS

For many hopeful parents in India, the biggest obstacle to parenthood is not infertility but the law itself. The country’s restrictive surrogacy laws allow only married heterosexual couples to pursue surrogacy, shutting out single parents, LGBTQ+ couples, and foreign nationals. No matter how ready they are to love and raise a child, the law simply doesn’t give them that chance.

The UK, on the other hand, embraces a broader definition of family. Single parents and same-sex couples can legally pursue surrogacy, reflecting a more progressive and inclusive approach. But this inclusivity comes with a different kind of challenge. In the UK, intended parents do not automatically become the legal parents at birth—they must apply for a parental order, a process that can take months. Imagine bringing a child into the world, bonding with them, and yet being legally considered a stranger to them for a significant period.

India’s approach provides immediate legal clarity, while the UK’s process is more cautious. A balanced solution could be for India to widen access to surrogacy while maintaining its clear legal framework, ensuring that all types of families can have children without facing unnecessary legal hurdles. Meanwhile, the UK could work towards simplifying its parental recognition process so that parents don’t have to wait months to be legally acknowledged.

The Surrogate’s Perspective: Choice vs. Protection

Discussions on surrogacy often focus on the rights of parents and the legal status of children, but what about the women who make it possible? In India, strict eligibility rules mean a surrogate must be a married woman who is already a mother and a close relative of the intended parents. The intent behind this rule is to prevent exploitation, but in practice, it limits the autonomy of women who may genuinely want to help others experience parenthood. What if a woman, having known the joy of motherhood, wants to help a friend or even a stranger have a child? Indian law does not give her that choice.

In contrast, the UK allows a broader group of women to become surrogates, though commercial surrogacy remains illegal. While this gives women more control over their decisions, it also puts them in a legally uncertain position. In the UK, a surrogate remains the legal mother until the intended parents successfully obtain a parental order, which can be emotionally challenging for everyone involved.

A more compassionate approach could involve India relaxing its rigid restrictions on surrogate eligibility while ensuring ethical protections remain in place. Likewise, the UK could create a system that provides legal certainty to all parties from the moment of birth, ensuring that surrogates are respected without putting them in an unnecessarily complicated legal situation.

Cross-Border Surrogacy and Legal Complications

With India’s restrictive surrogacy laws, many Indian couples have no choice but to look abroad for options. However, international surrogacy is a legal maze filled with citizenship issues, travel document complications, and conflicting laws between countries. Imagine the heartbreak of waiting years to become parents, only to find that bringing your child home is entangled in bureaucratic red tape.

This isn’t just an issue for Indian parents. UK couples who go abroad for surrogacy often face similar difficulties if the legal framework of the foreign country does not align with UK law. In such cases, children may be left in a state of legal limbo, caught between different national policies.

Rather than pushing parents toward risky or uncertain cross-border arrangements, countries like India and the UK could collaborate on international agreements to ensure that children born through surrogacy are not left in legal uncertainty. Such agreements could protect the rights of surrogates while also making the legal process smoother for intended parents, regardless of where they seek surrogacy services. 

Conclusion: Finding a Middle Ground

At its core, surrogacy is about family, love, and the desire to bring new life into the world. It is deeply personal, yet the legal frameworks governing it often make it complicated, restrictive, and exclusionary. India prioritizes strict regulation to prevent exploitation, but in doing so, it excludes many people from becoming parents. The UK allows more freedom and inclusivity, but its legal formalities can create stress and uncertainty for both intended parents and surrogates.

A more humane surrogacy law would blend the best of both approaches—ensuring ethical safeguards while also making the process inclusive and legally clear. Instead of rigid laws that create unnecessary struggles, countries should adapt their policies to reflect the changing definitions of family, ensuring that no one is denied the chance to experience the joy of parenthood.Because at the end of the day, surrogacy is not just about rules and regulations—it’s about people, their dreams, and the children they bring into the world.