The successful delivery of first IVF child, Kanupriya alias Durga, in Kolkata on October 3rd,1978 gave the Indian population hope for surrogacy as an alternative reproductive technique (ART).This incident introduced India to a new practice, a practice that unknowingly led to India being called a 'baby factory'. In order to critically understand what surrogacy is, we need to first acknowledge the two different types of surrogacy; commercial surrogacy and altruistic surrogacy.

Commercial surrogacy includes surrogacy or its related procedures undertaken for monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage. In altruistic surrogacy on the contrary, no monetary compensation is provided to the surrogate mother apart from all the expenses subjected to the medical field along with the insurance coverage provided.

Legislations related to surrogacy have therefore sparked recent debates over two very contrasting ideas. The major debate around surrogacy is the conflicting interests of its different stakeholders. On one hand, it is the responsibility of the state to safeguard the interests of the unborn child and prohibit any kind of exploitation that the surrogate may be subjected to. On the other hand, lies the rights of women and parents to control their own reproductive processes and to parent, respectively. Surrogacy laws in India have had difficulty striking a balance between these competing interests. Keeping this in mind, in this article we will go into the basics of these views.

Background
The background of Surrogacy dates back to the 1900s. With the first incident of Surrogacy in Kolkata in 1978 came distinct legislations; once to legalise, often to regulate and by the end of it to make it illegal. Although the first incident of Surrogacy took place in 1978, no doctor was really too keen on performing it due to the controversy surrounding it. It was then in the early 2000s when in a cramped by lane off Station Road in Anand, men camped beneath the banyan tree on a bench waiting for their women to complete their business at an adjacent clinic. India's cooperative milk capital soon turned into a surrogacy hub.

India legalized commercial surrogacy in 2002, leading to the rapid growth of commercial surrogacy firms claiming expertise in surrogacy law. Even though commercial surrogacy was made legal back then, there was a lack of a specific bill and the implementation of regulations, resulting in a haphazard condition of the surrogacy practices that existed in India. Low-cost fertility clinics and underprivileged women became involved, making India a hub for surrogacy. The lack of regulation led to a multitude of challenges in the country.

One of the key moments in the evolution of surrogacy laws in India came with the K.Kalaiselvi vs Chennai Port Trust case of 2013. In this landmark judgment, the Supreme Court clarified the different types of surrogacy that exist, emphasizing the need for regulation in light of earlier cases like Baby Manji Yamada Case of 2008 and Jan Balaz case of 2009. recognizing the gaps in existing laws, the Indian Council of Medical Research (ICMR) issued guidelines in 2005 to regulate alternative reproductive techniques (ART), including surrogacy.

These guidelines aimed to outline the rights and responsibilities of all parties involved—the couple, the surrogate mother, and the child. However, since they were not legally enforceable, they fell short of providing real protection. In 2016, the Surrogacy (Regulation) Bill was introduced in the Lok Sabha, bringing forth a revolutionary concept: the prevention of commercial surrogacy and the promotion of altruistic surrogacy. Unfortunately, this bill lapsed with the dissolution of the 16th Lok Sabha.

Undeterred, the Surrogacy (Regulation) Bill, 2019 was introduced to replace the earlier version. This bill underwent extensive discussions and debates in both houses of Parliament, reflecting a commitment to addressing the complexities surrounding surrogacy. These deliberations ultimately paved the way for the Surrogacy (Regulation) Act, 2021, marking a significant step forward in the regulation of surrogacy in India.

No law persuades simply because it threatens
Since the early 2000s, India has become a go-to destination for international surrogacy, attracting couples and single parents from around the globe. One of the main reasons for this surge is the affordability; the entire process costs about one-third of what it does in many other countries.

A pivotal moment in this journey came with the K. Kalaiselvi vs. Chennai Port Trust case in 2013. This landmark ruling not only clarified the different types of surrogacy but also paved the way for better regulations. India's role in helping families realize their dreams of parenthood is heartwarming, but it also emphasizes the importance of creating laws that protect everyone involved in this deeply personal journey.

• Traditional Surrogacy: Traditional surrogacy is when a woman carries a baby for a couple using her own egg and the father's sperm. This means she is biologically related to the child. After the baby is born, the surrogate hands the child over to the intended parents, who will raise them. While this arrangement can help families grow, it can also be emotionally complex. Open communication and understanding between everyone involved are key to making the experience as positive as possible.
• Gestational Surrogacy: Here, the surrogate is not the biological mother. The child is created using an egg donor and sperm from one of the intended parents. The surrogate carries the baby but has no genetic link to it.
• Altruistic Surrogacy: In India, this type involves the intended parents covering the surrogate's medical expenses but not paying her for carrying the child. The arrangement is based on compassion rather than financial compensation.
• Commercial Surrogacy: In this model, the intended parents pay the surrogate for her services, including carrying the baby and relinquishing parental rights after birth.

The 228th report of the Law Commission of India deliberated upon the issue of surrogacy in the year 2009 and included criticism of the draft assisted reproductive technology (regulation) bills and rules, 2008. The conclusion along with the recommendations of the law report talked about the conflicts of various interests that surrogacy has bred.

The Paradox
The Surrogacy (Regulation) Act, 2021 has specific restrictions on who can pursue surrogacy. It prohibits single males (whether unmarried, divorced, or widowers), unmarried females, transgender individuals, homosexual couples, live-in couples, and even married couples who already have a child. Additionally, if a married couple can conceive but the wife is healthy and simply wants to avoid pregnancy, they are also not allowed to use surrogacy.

The law also has strict rules about the use of gametes, zygotes, and embryos, stating that individuals cannot transfer or use these materials outside of India without permission from Indian authorities under the ART Act. This means that the options for surrogacy are limited not only within India but also internationally. The topic of surrogacy has sparked heated debates, as the evolving legislation often overlooks the desires of those who yearn for a biological child through surrogacy. When discussing surrogacy, two contrasting views frequently emerge, reflecting the complexities and emotions surrounding this sensitive issue.

One that states that the Universal Declaration of Human Rightsasserts that every adult has the right to start a family. Additionally, advocates argue that a woman's choice to give birth is a fundamental aspect of her personal liberty under Article 21 of the Indian Constitution. They claim that the Surrogacy Law is discriminatory, exclusionary, and arbitrary, and therefore undermines reproductive rights. They also emphasize that Article 16(1) of the Indian Constitution, along with Supreme Court rulings, highlights that procreation, family life, and sexual orientation are essential to individual dignity.

Another important perspective in the surrogacy debate focuses on the potential exploitation of surrogate mothers and the children born through surrogacy, particularly when foreign couples are involved. Concerns have even been raised about the constitutional validity of the surrogacy law, leading to challenges in the Supreme Court. A significant issue arises when the intended couple faces legal trouble, such as imprisonment for violating surrogacy laws.

This situation creates uncertainty about what happens to the child, as the law recognizes the child as the biological offspring of the intended couple, not the surrogate mother. The push for altruistic surrogacy raises a critical question: how likely is it that a woman would willingly carry and deliver a child for a couple she doesn't have a personal connection with, and then give up that child? This dilemma highlights the emotional complexities and ethical concerns surrounding surrogacy, emphasizing the need for careful consideration of the motivations and circumstances of all parties involved.

Past Judgments:
Apart from the landmark judgment of K.Kalaiselvi vs Chennai Port Trust case of 2013 which laid down the very basic definitions of Surrogacy, there are two significant case laws that played a vital role in shaping the future of Surrogacy in India back then.

Baby Manji Yamada vs. Union of India (2008) was a landmark case that marked the first significant legal ruling on surrogacy in India. Baby Manji was born to an Indian surrogate for a Japanese couple who separated before her birth, leaving her future uncertain. Her biological father, Ikufumi Yamada, sought to take her to Japan, but legal hurdles prevented this from happening. Ultimately, the Supreme Court intervened, allowing Baby Manji to leave the country with her grandmother. This case highlighted significant legal gaps in surrogacy arrangements and led to the Indian government enacting regulations to address these issues.

Jan Balaz vs. Anand Municipality (2009) involved a child born to an Indian surrogate for a father with German citizenship. The Gujarat High Court ruled that the birth certificate would list the surrogate mother as the legal parent and that the child would be granted Indian citizenship. Following this, the surrogate was required to give the child up for adoption to the German couple who had utilized her services. This case raised important questions about citizenship and the rights of children born through surrogacy, further fueling discussions about the need for clear legal frameworks.

To address the complexities surrounding surrogacy, the Surrogacy (Regulation) Bill 2016 was introduced to establish clearer guidelines in India. According to the bill, only childless couples who have been legally married for at least five years can seek a surrogate, and that surrogate must be a close relative of the couple. This means that single individuals and same-sex couples are left out of the surrogacy option, which raises important questions about inclusivity and access to reproductive choices. The bill aims to protect everyone involved, but its restrictions highlight the need for more comprehensive solutions that consider the diverse ways families can be formed today.

Furthermore, the bill aims to eliminate commercial surrogacy, permitting only altruistic arrangements. Under this model, surrogates can only receive reimbursement for basic childbirth expenses and cannot receive additional payments or benefits. While the bill seeks to protect the rights of all parties involved, it effectively limits options for couples without many close relatives willing to act as surrogates, often leaving adoption as their only alternative. These cases and the subsequent legislation reflect ongoing discussions about the rights of children, parents, and surrogates in the evolving landscape of surrogacy in India.

"To be stateless means that you are deprived of the right to have rights."

The Surrogacy (Regulation) Bill 2019 underwent modifications after discussions in the Rajya Sabha, where a committee engaged various stakeholders to refine the legislation. These discussions led to important amendments, and the bill was ultimately passed into law on December 25, 2021. This law was released alongside the Assisted Reproductive Technology (Regulation) Act, 2021.

The Surrogacy (Regulation) Act, 2021, which came into effect on January 25, 2022, focuses on charitable surrogacy, aiming to ensure that the process is not exploited by those with financial means. By prohibiting commercial surrogacy and the trade of human gametes and embryos, the law seeks to protect the integrity of surrogacy, making it a more ethical option for those who genuinely need it. This shift highlights a commitment to responsible practices in surrogacy, prioritizing the well-being of all parties involved.

Lets go deeper into the Surrogacy (regulation) Act 2021;
The provisions:
Under the Surrogacy (Regulation) Act, 2021, surrogacy is available to specific groups: women who are widows or divorcees aged between 35 and 45, as well as legally married couples facing medical issues that make traditional conception challenging. This law aims to ensure that surrogacy is a viable option for those who truly need it.

Importantly, the Act bans commercial surrogacy entirely, with serious penalties for violations including a jail term of up to 10 years and fines reaching ₹10 lakhs. Instead, it permits only altruistic surrogacy, meaning no money can change hands beyond covering basic medical expenses. Additionally, the surrogate mother must be genetically related to the intended parents, ensuring a personal connection in the surrogacy process.

This legislation reflects a commitment to ethical practices in surrogacy while addressing the needs of families requiring this option.

Surrogacy is closely linked to the important field of Assisted Reproductive Technology (ART), which helps couples facing infertility. ART includes a range of fertility treatments that work with both a woman's eggs and a man's sperm. The process usually starts with extracting eggs from the woman's body, which are then fertilized with sperm to create embryos. These embryos are carefully implanted back into the woman's body or a surrogate's, giving them a chance to grow into a pregnancy.

This journey can be both hopeful and emotional, as it involves the dreams and aspirations of families seeking to welcome a child into their lives. In Vitro Fertilization (IVF) is the most prevalent and effective form of ART. ART procedures may also use donor eggs, donor sperm, or previously frozen embryos, and can include the use of a surrogate carrier.

Legal Provisions surrounding the topic of ART:
The Assisted Reproductive Technology (ART) Regulation Act 2021 created the National Assisted Reproductive Technology and Surrogacy Board, which is essential for ensuring that the new regulations work effectively. The Board's main goal is to provide a structured system that helps everyone involved in surrogacy and ART feel safe and supported. By overseeing the implementation of the bill, the Board aims to promote ethical practices and address any concerns that may come up during the surrogacy process. This initiative shows a dedication to protecting the rights and well-being of families as they embark on their journey to parenthood.

The Act is therefore focused on a number of factors, these include:

• Regulation and Supervision of ART clinics
• Regulation and Supervision of assisted reproductive technology banks
• Prevention of misuse of the provisions of the bill
• Safe and ethical practice of ART services

Conclusion:
India, a major hub for assisted reproductive practices, is taking a positive step with this new act. However, it is crucial to ensure dynamic oversight so that the legislation adapts to rapidly advancing technology, evolving moral standards, and societal changes. To prevent the exploitation of women, the act incorporates strong checks and balances. It arrives at a time when there was significant demand for regulation of commercial surrogacy,

The Surrogacy (Regulation) Act, 2021 has sparked important debates, highlighting both its advantages and disadvantages. One of the main concerns revolves around the right to life under Article 21 of the Constitution, which includes the idea of reproductive autonomy. Critics argue that the bill restricts this autonomy by excluding LGBTQ individuals, live-in couples, single parents, and those who are divorced or widowed. Another significant issue is the potential violation of Article 14, which guarantees equality.

The bill's restrictions based on factors like nationality and age may undermine this principle, making some people feel excluded from options available to others. Moreover, many women who become surrogate mothers come from economically disadvantaged backgrounds and often see surrogacy as a vital source of income. By promoting altruistic surrogacy and limiting compensation, the bill places a heavy expectation on these women to provide reproductive services without fair financial support. This raises serious ethical questions about the treatment of surrogate mothers and their rights, emphasizing the need for thoughtful consideration of their circumstances.

To address these concerns, there should be comprehensive health and background checks for surrogates, supportive laws, strict penalties for non-compliance, specific insurance policies for surrogates, and education about their rights and potential risks. These measures could help protect surrogate mothers from exploitation without necessitating a ban on the commercialization of surrogacy.

Surrogacy in itself requires a lot of research based on multifaceted experiences and interests. Either way, the debate around ban or no ban is everlasting but one thing that the entire deliberation has pointed out is the deeply ingrained deplorable condition of poverty in India that for the starters, is the root cause of Surrogacy.