Surrogacy in India has traversed a complex legal landscape, marked by its evolution from an unregulated practice to a domain under strict legislative oversight. This article delves into the intricate web of legal principles governing surrogacy in India, exploring the Surrogacy (Regulation) Act, 2021, along with pertinent judicial pronouncements.

The discussion encapsulates the ethical and legal conundrums posed by surrogacy, particularly in relation to the rights of the surrogate mother, intending parents, and the child born out of surrogacy. By analyzing key case laws, the article seeks to elucidate the current legal framework and its implications on the rights and obligations of the parties involved.

Introduction
Surrogacy, as a method of assisted reproduction, has been a subject of intense debate in India, a country that was once a global hub for commercial surrogacy. The ethical, social, and legal issues surrounding surrogacy have compelled the Indian legislature and judiciary to impose stringent regulations to safeguard the interests of all parties involved.

The enactment of the Surrogacy (Regulation) Act, 2021, represents a significant shift in the regulatory framework, aiming to prohibit commercial surrogacy while permitting altruistic surrogacy under specific conditions. This article explores the legislative framework, judicial interpretations, and the broader implications of surrogacy laws in India.

Legislative Framework: The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, is a landmark legislation that seeks to regulate surrogacy in India comprehensively. The Act prohibits commercial surrogacy, allowing only altruistic surrogacy, wherein the surrogate mother receives no financial gain beyond medical expenses and insurance coverage.

Key provisions of the Act include:

• Eligibility Criteria: The Act lays down strict eligibility criteria for both intending couples and surrogate mothers. For intending couples, the Act mandates that they must be Indian citizens, married for at least five years, and unable to conceive. The surrogate mother must be a close relative of the intending couple, a married woman with at least one child of her own, and within the age range of 25-35 years.
   
• Surrogacy Boards: The Act establishes national and state surrogacy boards to oversee the regulation and implementation of surrogacy laws. These boards are responsible for granting surrogacy certificates, monitoring surrogacy clinics, and ensuring adherence to the law.
   
• Penalties: The Act imposes stringent penalties for engaging in commercial surrogacy, advertising for surrogacy, and conducting surrogacy procedures without proper authorization. Violators can face imprisonment of up to ten years and fines extending to ten lakh rupees.

Judicial Interpretations

The Indian judiciary has played a pivotal role in shaping the legal discourse on surrogacy. Several landmark judgments have contributed to the development of surrogacy laws, addressing issues such as the rights of the child, the surrogate mother, and the intending parents.

• Baby Manji Yamada v. Union of India, (2008) 13 SCC 518: In this landmark case, the Supreme Court addressed the legal status of a child born to a Japanese couple through surrogacy in India. The case highlighted the lacunae in the legal framework governing surrogacy and underscored the need for comprehensive legislation. The Court recognized the rights of the child and emphasized the need for the state to protect these rights.
   
• Jan Balaz v. Anand Municipality, (2010) 3 SCC 1: This case involved a German couple who sought to take their surrogate twins, born in India, back to Germany. The Supreme Court had to navigate the complexities of citizenship, nationality, and the legal status of children born through surrogacy. The Court's decision underscored the need for a clear legal framework to address the rights of children born out of surrogacy.
   
• K. Kalaiselvi v. Chennai Port Trust, (2013) 9 SCC 181: In this case, the Supreme Court considered the employment benefits available to a woman who had a child through surrogacy. The Court held that the absence of a biological connection did not deprive the woman of maternity leave benefits, thus affirming the rights of intending mothers under surrogacy arrangements.

Ethical and Legal Conundrums

Surrogacy presents a myriad of ethical and legal challenges. The prohibition of commercial surrogacy has been lauded for curbing the exploitation of economically disadvantaged women. However, it also raises concerns about the autonomy of women who may wish to engage in surrogacy as a means of financial empowerment. Additionally, the restrictive eligibility criteria under the Surrogacy (Regulation) Act, 2021, have been criticized for being exclusionary, particularly in the context of single parents and LGBTQ+ individuals who are barred from accessing surrogacy.

Another contentious issue is the legal parentage of the child born through surrogacy. While the Act provides for the intending parents to be recognized as the legal parents, issues may arise in cases of surrogacy involving foreign nationals, where conflicting laws between countries could lead to disputes over citizenship and parental rights.

Conclusion
Surrogacy in India remains a complex and evolving legal issue, with the Surrogacy (Regulation) Act, 2021, representing a significant, albeit imperfect, attempt to regulate the practice. The Act aims to balance the rights and obligations of all parties involved, yet it also raises critical ethical and legal questions that require ongoing judicial scrutiny and legislative refinement. The interplay between legislative intent and judicial interpretation will continue to shape the surrogacy landscape in India, as society grapples with the moral and legal implications of this assisted reproductive technology.

References:

1. Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
2. Jan Balaz v. Anand Municipality, (2010) 3 SCC 1.
3. K. Kalaiselvi v. Chennai Port Trust, (2013) 9 SCC 181.
4. The Surrogacy (Regulation) Act, 2021.