Commercial surrogacy was legalized in India back in 2002. Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges, including exploitation, unhygienic living conditions, and unfair treatment. Thus, the law is a welcome move in the right direction; however, banning commercial surrogacy has created its own set of challenges.
The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women’s autonomy to make their own reproductive decisions and right to parenthood. One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.
The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. This law comes as a backlash to the other laws passed in favor of the LGBTQ+ community, like banning Section 377 and Right to Privacy. Moreover, by restricting the Act only to the cis-gender heterosexual couples and single mothers (widows and divorced), the Act infringes the right to parenthood for the LGBTQ+ population and single fathers, as defined under Article 21 by The Supreme Court of India.
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