Between Altruism and Exploitation: Rethinking Surrogacy Regulation in India

*by Rajveer Singh Sachdev & Aman Anand

Introduction

The Surrogacy (Regulation) Act of 2021 [hereinafter “The Act”] banned commercial surrogacy in India. Defined under S2(g) of the Act, it occurs when surrogacy involves payments or incentives beyond medical expenses and insurance for surrogate mothers, which is explicitly prohibited. Permissible expenses typically include medical costs and other prescribed expenditures for the surrogate. The alternative proposed to this was the concept of altruistic surrogacy [Section 2(b)], which involves no payment or compensation other than the medical expenses and insurance coverage for the surrogate mother. This difference is very narrow, as the only discernible difference lies in the payment to the surrogate mother. While the intention behind this framework is to protect the surrogacy process and prevent the exploitation of surrogate mothers, scholars have argued that under-the-table transactions and the grey area involving altruistic surrogacy could lead to its commercialisation in the traditional sense without proper regulations [See Also: Das and Maut (2014), Payne (2018), Kashyap and Tripathi (2018)]. This blog will further delve into the idea of the commercialisation of surrogacy, and argue that potentially inefficient enforcement mechanisms could result in the formation of an unregulated market for the same.

Commercial Surrogacy

Commercial surrogacy was unregulated in India since 2002, until it was eventually banned in 2015. Prior to the ban in 2015, India was a major hub for surrogacy and was often called the “Baby Factory.” Due to low cost and favorable conditions, India attracted a lot of foreigners from countries like the UK and the USA. The lack of employment and high amount of compensation after 9 months made commercial surrogacy a popular practice in India. However, due to a lack of proper rules and regulations, unethical practices and exploitation of women were prevalent. Ethical issues like treating women as ‘objects’ or ‘commodities’ were also brought up [See Also: Clowes and Cantu (2023), Kindo et. Al. (2023), Saxena et. al. (2012)]. A study in 2012 estimated the size of the surrogacy industry to be 2 billion dollars per year.

In 2015, commercial surrogacy was banned, and the Surrogacy (Regulation) Act, 2021, introduced altruistic surrogacy in India. The surrogate mother, being genetically related to the intending parents [Sec. 2(zg)] will be allowed to indulge in altruistic surrogacy. The surrogate mother must be married and should have a biological child [Sec 4(iii)(b)(I)]. The Act imposes a ban on foreigners, live-in couples, gay couples, overseas Indians and single parents from opting for commercial surrogacy. Commercial surrogacy was deemed immoral as it treats women as a commodity, and sometimes the woman is not paid appropriately for her time, effort, pain, danger and suffering involved in the course of bearing the child [See Also: Arneson (2018), Blazier and Janssens (2020)]. The surrogate children often struggle for their nationality and are delivered without a recognised nationality [See Also: Baby Manji Yamada vs Union Of India (2008), Jan Bazaz vs Anand Municipality and Ors (2009)]. The safety of the surrogate mother was often compromised, and there were no regulations or safety provisions for the mother. The lack of a proper legal system and rules led to the ban on commercial surrogacy in India. However, as the blog will argue, this complete ban on commercial surrogacy doesn’t serve its intended purpose.

Arguments

1.     Demand for commercial surrogacy won’t disappear due to it being banned

Rooted in basic economic theory, the banning of something won’t automatically cause its demand to be extinguished from the market. As long as there is a demand, the supply for the same will continue to rise in an unregulated sector. Despite the US’s prohibition on alcohol during the 1920s, the demand remained the same, which resulted in illegal speakeasies. The war on drugs is another example where the demand won over the ban, and the war was won by drugs [See Also: Esquivel-Suárez (2018)]. The demand for surrogacy in India is high, not only amongst infertile couples, but same-sex couples, live-in couples, etc [See Also: Horsey (2023)] Combine that with the economic incentive the surrogate mother receive as compensation through  under-the-table transactions, the supply  will likely remain steady. As this will fall under the category of commercial surrogacy, the same will exist in an unregulated market despite being banned. Not going into the constitutional aspects of right and freedom to trade, this unregulated market will lead to more exploitation of the surrogate mothers.

2.     Lack of Altruistic Options

While the demand for surrogacy is high, altruistic surrogacy remains an option. However, the stringent requirements for the surrogate mothers render the potential candidates for the same very narrow. As per the requirements listed in sub-clause (b) of clause (iii) of Section 4, the surrogate mother needs to be between the ages of 25-35, genetically related to the intending couple. ever-married, must have one biological child of her own and can only become a surrogate once in her lifetime. This narrows down the candidate pool. Further, most women are unwilling to undergo pregnancy, with all its risks and burdens, without compensation [See Also: Shenfield et al. (2025), Saliu (2025), Lieber (1992)]. It risks exploiting women’s goodwill by expecting them to undergo this without compensation. In a study done by Hibino, it was observed that women in lower strata preferred undergoing surrogacy for a compensatory sum of Rs 3 lakh to 4 lakh, which they quoted as “big money for poor families,” but held the belief that the surrogate mothers could be paid more. The attitude towards the commercialisation of surrogacy when the difference between commercial and altruistic is too simplistic to enforce correctly.

3.     Ambiguities in law and enforcement difficulties

The definition of altruistic surrogacy under section 2(b) of the Act entitles the surrogate mother to medical and prescribed expenses, which have not been defined in the Act or the rules. This creates a grey area, where intended parents can compensate surrogates under the guise of “medical expenses.” Without strict guidelines or disclosure requirements, these payments can effectively become commercial transactions in all  but name [See Also: Jain (2024), Stuhmcke (2017), Bannerjee (2006)]. Furthermore, surrogacy arrangements are deeply personal and private, typically involving only a few individuals. State authorities have limited capacity to monitor private relationships, financial transactions, or informal agreements. Even when commercial intent is suspected, proving it is difficult without clear documentation or a whistleblower, especially when both parties benefit and are unlikely to report each other. As a result of this legal vagueness and limited enforcement, an informal surrogacy market can emerge, where payments are made discreetly, in cash or non-traceable ways, contracts may be drawn up informally, outside legal scrutiny, and intermediaries and agencies operate in a semi-legal capacity, connecting intended parents and surrogates while skirting regulation. This undermines the very purpose of banning commercial surrogacy, which is often to prevent exploitation and commodification — yet those risks increase in an unregulated, underground environment.

Recommendations

Some recommendations can be made to ensure smooth regulation of the same if commercial surrogacy is legalised.

Firstly, a transparent framework can be made that allows commercial surrogacy under a licensed practitioner. Only registered practitioners and clinics could operate. Establishing a centralized regulatory body (e.g., National Surrogacy Board) to oversee compliance, licensing, and grievances, and mandate strict accreditation for clinics and practitioners, with regular audits could prevent exploitation.

Secondly, allow all consenting women (married, unmarried, single parents, etc.) to become surrogates, provided they pass medical and psychological screenings, undergo mandatory counselling on legal, health, and emotional risks and provide informed consent without coercion. Opening up surrogacy access to single individuals, LGBTQ+ couples, and live-in partners could ensure equity.

Thirdly, clarifying and broadening the difference between what commercialised and altruistic stand for could help. Vague terms like “medical expenses” and “prescribed expenses” allow room for interpretation and could lead to under-the-table transactions. Replacing them with transparent compensation structures, including base payment for the surrogate, medical, insurance, and maternity coverage, post-delivery support (if needed) would ensure transparency in payments.

Conclusion

The Surrogacy Act’s outright ban on commercial surrogacy is a well-intentioned but fundamentally flawed policy. By ignoring the persistent demand for surrogacy—from infertile couples, LGBTQ+ individuals, and single parents—the law has not eliminated the practice but driven it underground, where exploitation thrives unchecked. The current altruistic model is unworkable: few women will endure pregnancy’s physical and emotional toll without compensation, and vague definitions of "medical expenses" invite covert payments. The result? A shadow market with no safeguards, no oversight, and no justice for surrogates.

India has a choice—cling to an unenforceable ban that endangers women, or establish a transparent, regulated system that ensures fair compensation, medical protections, and legal accountability. Regulation won’t encourage commodification—it will prevent it by bringing surrogacy into the light, where contracts are enforced, clinics are monitored, and surrogates are empowered. The 2021 Act’s moralistic approach has failed. It’s time for a pragmatic, rights-based solution—one that prioritizes safety over symbolism, and dignity over denial. The law must change, or the exploitation will continue. The stakes are too high to ignore.

*Rajveer Singh Sachdev is a second-year law student pursuing a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab.

*Aman Anand is a second-year law student pursuing a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.