Surrogacy (Regulation) Act, 2021: Safeguarding Rights Of Women And Children Amid Challenges

In a country like India where not having a child is a social taboo, surrogacy brought hopes and happiness for many childless couples. Amid these hopes, there are also ethical concerns whether it was morally correct to use one’s body to reproduce and make a living out of it. Furthermore, as India legalized surrogacy way back in 2002 and made it an important component of medical tourism, the surrogacy market grew multifold. This growth in surrogacy market also posed many challenges. Exploitation of surrogates and abandonment of children started surfacing in a big way. The government of India acknowledged these problems and enacted the Surrogacy (Regulation) Act, 2021. Through this Act, the government majorly focused on two aspects. First, it put an end to commercial surrogacy to do away with exploitation of surrogates. Secondly, in order to fulfil the need of childless couples, it allowed altruistic surrogacy where there will be no payments for surrogate except for her medical and insurance expenses. Furthermore, it also restricts the foreigners from availing this facility. How will this new act unfold is a matter of academic enquiry. Preliminary impressions through popular writings are pointing at many loopholes in the act. To begin with, it is suggestive of black marketing. As a result, while the hospitals and middlemen continue to mint money, the surrogates are at the loser’s end. Additionally, altruistic surrogacy is exerting a lot of pressure on weaker women of families’ giving rise to women exploitation. Furthermore, it also deprived many women of their jobs as surrogates. Through this paper, an attempt is made to understand the act of 2021 and the way it solves or give rise to new challenges in safeguarding the rights of surrogates and children and the future of surrogacy in India.