- 01-Aug-2025
- Marriage and Divorce Laws
Surrogacy arrangements, where a woman carries and gives birth to a child for another person or couple, have gained popularity as a means of building families. However, these arrangements present a variety of legal, ethical, and practical challenges. Legal protections are crucial to ensure the rights of all parties involved, protect against exploitation, and establish clear guidelines for the welfare of the child. These protections need to address issues such as consent, compensation, parenthood, and the medical risks associated with surrogacy.
Current Issue: In many countries, including India, surrogacy laws are still evolving, leaving a legal gray area. While commercial surrogacy has been banned in some places, others have not provided a clear legal structure for surrogacy agreements.
Protection Needed: There must be clear, enforceable contracts that protect all parties involved in the surrogacy arrangement, including the surrogate mother, the intended parents, and the child. These contracts should explicitly outline the rights and responsibilities of all parties, including issues related to financial compensation, medical care, and the intended parents’ rights to the child after birth.
Current Issue: Surrogate mothers often face exploitation, with concerns over fair compensation, medical care, and emotional well-being. The lack of legal protections for surrogate mothers can result in unethical practices, such as coercion or lack of informed consent.
Protection Needed: Surrogate mothers need legal protections that ensure they are compensated fairly for their time and effort, receive proper medical care, and have the right to make informed decisions regarding their bodies. Surrogacy contracts should guarantee proper counseling, medical support, and emotional guidance before, during, and after the pregnancy.
Current Issue: One of the most complicated aspects of surrogacy arrangements is the issue of parentage. In many jurisdictions, the legal status of the intended parents and the surrogate mother may be unclear, leading to disputes over custody or parental rights after the birth of the child.
Protection Needed: Laws must clearly establish the parental rights of the intended parents before the birth of the child to avoid any legal disputes. A pre-birth order or clear legal recognition of the intended parents should be in place to ensure that they are recognized as the legal parents upon birth, while ensuring the surrogate mother relinquishes her parental rights.
Current Issue: In countries where commercial surrogacy is allowed, there can be a risk of exploitation, especially in situations where surrogates are paid very little and are vulnerable due to economic conditions. Commercial surrogacy may also lead to the commodification of children and the exploitation of low-income women.
Protection Needed: If commercial surrogacy is legalized, strict regulations must be in place to prevent exploitation. This includes setting a cap on compensation to prevent undue financial incentive for surrogates, establishing comprehensive health and safety standards for the surrogate, and ensuring that the process is transparent and ethical. Additionally, there should be regulations against international surrogacy tourism, where people from wealthier countries exploit surrogacy in less developed nations.
Current Issue: The child born through surrogacy may face legal and emotional challenges regarding their identity, parentage, and citizenship. There is also the potential for emotional harm to the child if the surrogacy process is handled irresponsibly or with unethical practices.
Protection Needed: Legal protections for the child’s welfare should be prioritized, including ensuring that the child’s citizenship and parentage are clearly defined at birth. Laws should be in place to protect the child’s best interests, including ensuring that the child is raised in a stable environment with clear parental responsibility. Furthermore, there should be ethical guidelines in place to ensure that surrogacy arrangements do not exploit the child’s status or create long-term emotional harm.
Current Issue: Surrogacy involves significant medical and emotional risks for the surrogate mother. Without proper counseling and informed consent, the surrogate may be coerced into an arrangement that she may not fully understand or agree with.
Protection Needed: Both surrogate mothers and intended parents must be provided with adequate counseling and information about the surrogacy process, potential risks, and rights. This includes ensuring that the surrogate mother understands her rights regarding termination, medical care, and post-birth issues. Additionally, independent legal advice should be available to all parties to ensure that contracts are fair and mutually agreed upon.
Current Issue: Surrogacy carries medical risks for the surrogate mother, including complications during pregnancy, labor, and delivery. The lack of adequate medical care and attention can result in harm to both the surrogate and the child.
Protection Needed: Legal provisions should require that all parties involved in surrogacy have access to adequate and appropriate medical care throughout the process. Insurance policies should be mandatory to cover medical costs, including any potential risks or complications. Additionally, regular medical checkups and screenings should be part of the surrogacy arrangement to ensure the health and safety of both the surrogate and the child.
Current Issue: International surrogacy, where intended parents from one country use a surrogate from another country, raises issues related to citizenship, legal parentage, and the exploitation of women from developing nations.
Protection Needed: There should be international agreements or protocols in place to ensure that surrogacy arrangements across borders are conducted ethically and that the rights of the surrogate mother and child are protected. This includes ensuring that surrogate mothers are not exploited, and that intended parents are held accountable for their responsibilities under both local and international law.
In India, surrogacy was largely unregulated until the Surrogacy (Regulation) Bill, 2020 was introduced. The bill aims to regulate commercial surrogacy, banning it for foreign nationals and single individuals, while permitting it for married Indian couples with medical needs. The law outlines clear provisions for ensuring that surrogates are compensated fairly and are not exploited, while also protecting the rights of the child born through surrogacy.
Legal protections for surrogacy arrangements are essential to prevent exploitation, ensure the rights of all parties involved, and safeguard the welfare of the child. A comprehensive legal framework should address the need for clear contracts, fair compensation, health and medical support, child welfare, and ethical practices in surrogacy arrangements. These protections must be designed to balance the interests of the surrogate mother, the intended parents, and the child, while considering cultural, social, and ethical concerns surrounding reproduction and parenthood.
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