Recognized But Restricted: The Paradox of Reproductive Autonomy under The Surrogacy (Regulation) Act, 2021

*Dhaani Bharat Anita Dave

The Surrogacy (Regulation) Act 2021 is inherently discriminatory in its nature as it only includes and recognises two categories of people for surrogacy and excludes other couples from opting for the surrogacy process. The wording of the Act clearly indicates that “only Indian origin married couples and Indian single women who are widowed or divorced” are permitted to avail themselves of the process of surrogacy and excludes unmarried men and unmarried women, secondary infertile couples, live-in relationship couples and same-sex couples from opting for surrogacy and starting a family of their own. It is, on the face of it, that the Act discriminates among the people who can opt for surrogacy. Every individual who is a citizen of India has a set of fundamental rights which are guaranteed by the Constitution of India and cannot be violated in any circumstances. These fundamental rights form an integral part of an individual's life, which is available to everyone. This discrimination in the classification of a set of people for surrogacy is thus, in violation of the Constitutional provision Article 14 of the Constitution of India (hereinafter as ‘Article 14 COI’) and Article 21 of the Constitution of India (hereinafter as ‘Article 21 COI’).

Exclusion of Unmarried Individuals

Firstly, the exclusion of unmarried individuals from the Surrogacy (Regulation) Act 2021 raises significant legal and constitutional concerns. As, under the current statutory framework, marriage is made a necessary precondition for availing surrogacy. Thereby categorically denying access to single men and women. The Act has clearly failed to recognize that marriage is an individual choice rather than social or legal compulsion. Consequently, despite contemporary shifts in societal structures and progressive judicial recognition of diverse family units, the statute maintains a restrictive framework that effectively bars single individuals from exercising reproductive choices independently of their marital status.

For instance, the exclusion of single men from accessing surrogacy services raises concerns regarding the consistency of the legal framework governing parenthood in India. While the Surrogacy (Regulation) Act 2021 restricts single men from commissioning surrogacy, Indian law permits single men to adopt children. Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, expressly recognises the eligibility of a single male to adopt a child, subject to the condition that he shall not adopt a girl child. In light of this statutory recognition of single men's capacity to assume parental responsibilities through adoption, the denial of access to surrogacy for single men appears to lack a clear and rational justification.

Exclusion of Secondary Infertile Couples

Secondly, the Surrogacy (Regulation) Act 2021 does not recognise secondary infertile couples for the purpose of availing surrogacy. Secondary infertile couples are those couples who are medically incapable of having more than one child. These couples are also excluded from opting surrogacy as stated under section 4(c) (II) that “the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier provided if intending couple has any child who suffers from any mental , physical disorder or life threatening disorders in such cases surrogacy can be granted to that couple but for that proper approval from the district medical Board is required”.

Further, such restriction imposed by the Act is in violation of Article 14 of the COI as there is no equal treatment before the law of such couples as there is inherent discrimination and bias towards other categories of people. The act only classifies two categories of people who are eligible to avail surrogacy. The law fails to create an intelligible differentia, and there is no reasonable nexus for treating similarly situated persons differently. Further, there is a violation of Article 21 COI, as every individual has a right to privacy, which is recognised under the law, and from which the right to make reproductive decisions stems.

The right to reproductive autonomy is recognised by various case laws under Article 21 of the COI. For instance, in the case of Suchita Srivastava & Anr .v. Chandigarh Administration, the court acknowledged the fundamental right to reproductive autonomy. Additionally, in the historic ruling in K.S. Puttaswamy & Ors. v. Union of India and Ors, the Supreme Court upheld the ruling in Suchita Srivastava & Anr .v. Chandigarh Administration, wherein the court explicitly emphasised women’s constitutional right to make reproductive decisions under Article 21 of the COI. Also, in the case of Meera Santosh Pal v. Union of India, the Supreme Court stated that “in accordance with Article 21 COI, a woman's right to choose her reproductive choice is a component of her personal liberty.” These are one of many rulings that emphasise reproductive choices as a crucial component of the right to privacy established under the said article of the Constitution.

Hence, women, men and couples who want a second child but are incapable of having one are excluded from opting for surrogacy to get another child due to the provision enacted under the Surrogacy Law. Thus, it is stated that such provision enacted under the Surrogacy Law is in violation of Article 14 of the COI and Article 21 of the COI.

Exclusion of Couples in Live-in Relationship

Thirdly, the exclusion of live-in couples from the Surrogacy (Regulation) Act 2021 raises serious constitutional concern. As Article 21 of the COI grants the right to life and personal liberty to every individual. This fundamental guarantee inherently protects the right of individuals to cohabit with a partner of their choice and to define the nature of their relationship, irrespective of their marital status.

As in the case of Madan Mohan Singh v. Rajni Kant, the court had stated that “there would be a presumption of marriage between the parties if such a relationship lasts for a significant amount of time and cannot be characterised as a “walk-in and walk-out” relationship.” Further, in the case of Deepika Singh v. Central Administrative Tribunal, Justice D.Y. Chandrachud stated that families should not be restricted to typical family structures. The family relationship is evolving, and the law must evolve with it. The Courts are now recognising that a family is no longer a traditional unit and must account for the social evolution of families/relationships. This broader understanding of the notion of family supports the recognition of non-traditional family units, including couples in live-in relationships.

Consequently, it may be argued that such couples are entitled to equal recognition and protection of their reproductive rights, consistent with the constitutional principles of dignity, autonomy, and equality.

Exclusion of Same-Sex Couples

Lastly, the issue pertaining to the exclusion of same-sex couples from the Surrogacy (Regulation) Act 2021 is an important issue, as the legal status regarding surrogacy for same-sex couples remains invalid. The Supreme Court of India, in the landmark case of Navtej Singh Johar v. Union of India, decriminalised consensual homosexual acts under Section 377 of the Indian Penal Code, 1860. But this ruling did not automatically translate into conferring broader family or reproductive rights to same-sex couples.

Currently the Indian law does not recognize the legal validity of same sex marriages. This position was upheld in the case of Supriyo and Ors .v. Union of India, where the  Supreme Court declined to recognise a fundamental right to marry for same-sex couples, effectively leaving the legal status of queer marriages unchanged. Despite the lack of formal marriage recognition, denying same sex couples the right to access surrogacy raises profound constitutional questions regarding the right of reproductive autonomy and equality.

The rigid contemporary framework marks a sharp departure from earlier more progressive judicial observations  made by the Supreme Court in the case of Baby Manji Yamada v. Union of India, where the court acknowledged that surrogacy was a means of embracing parenthood and acknowledged that the parents might be a homosexual couple or a single parent. The strict implementation of the Surrogacy (Regulation) Act 2021 has effectively reversed this progressive understanding by limiting surrogacy exclusively to legally married heterosexual couples. As the queer couples still categorically remain excluded from the definition of an eligible “couple” under Section 2(h) of the Surrogacy (Regulation) Act 2021.

This statutory exclusion arguably infringes upon Article 14 COI by failing the judicially established “twin test” of reasonable classification, drawing an arbitrary and artificial division between married heterosexual couples and the rest of society. As marital status and sexual orientation bear no rational nexus to an individual’s emotional, financial or moral capacity to raise a child, such an exclusion of homosexual couples is wholly discriminatory. Further, there is state-sponsored discrimination which infringes Article 15 COI as the state has selectively denied essential reproductive healthcare technologies like surrogacy based on social prejudices surrounding an individual’s identity, marital status and sexual orientation. Lastly, there is infringement of Article 21 COI as the Act has clearly barred same-sex couples from opting for gestational surrogacy, which infringes an individual’s right to reproductive autonomy, which is an integral part of Article 21 COI. The Act denies a distinct segment of society the fundamental privilege of building a family based purely on sexual orientation and marital status.

In conclusion, the Surrogacy (Regulation) Act, 2021 adopts a restrictive approach to parenthood by limiting access to surrogacy primarily to married heterosexual couples, thereby excluding unmarried individuals, secondary infertile couples, live-in relationship couples, same-sex couples, and other non-traditional family structures. Such exclusions fail to reflect the evolving social realities and diverse forms of families recognised by contemporary constitutional jurisprudence. The ability to make decisions concerning procreation and parenthood forms an essential aspect of individual autonomy and personal liberty. Therefore, a more inclusive legal framework is required, one that recognises the changing nature of families and ensures that the right to pursue parenthood through surrogacy is available to all individuals without arbitrary discrimination.

*The Author is a recent graduate (Batch of 2026) of National Law University, Jodhpur, having completed her B.A. LL.B. (IPR Hons.) degree.

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