The Evolution of Surrogacy in India: From Fertility Tourism to Regulation

For nearly two decades, India occupied a unique and deeply contested position in global reproductive medicine. It was the destination of choice for thousands of couples from around the world who could not conceive on their own – drawn by affordable medical care, English-speaking doctors, and an almost complete absence of legal barriers. By the time serious regulation arrived in the form of the Surrogacy (Regulation) Act, 2021, the country had built a surrogacy industry worth hundreds of millions of dollars – one that had also left a trail of ethical questions about the women at its center.

India’s rise as a global surrogacy hub 🔗

India’s emergence as the world’s top surrogacy destination did not happen overnight. It was the product of a specific set of conditions that converged in the early 2000s. In 2002, a High Court ruling recognized commercial gestational surrogacy as lawful, effectively removing major legal barriers and opening the door to a regulated – yet largely ungoverned – industry. The Indian Council of Medical Research (ICMR) issued non-binding guidelines in 2005 that acknowledged the practice but carried no enforcement power, meaning clinics could largely operate as they wished.

What followed was rapid growth. Reproductive tourism in India was valued at over $450 million a year, with the ICMR projecting a potential $6 billion market. The Confederation of Indian Industry estimated that close to 10,000 foreign couples visited India annually for reproductive services. Clinics in cities like Mumbai, Delhi, and especially Anand in Gujarat – home to the pioneering Akanksha Infertility Clinic, opened in 1999 by Dr. Nayana Patel – became internationally recognized centers for surrogacy arrangements.

The reasons for India’s dominance were straightforward. The costs were dramatically lower than in the United States, Canada, or Australia. Medical infrastructure in private hospitals was sophisticated. Doctors and clinic staff communicated in English. And crucially, the regulatory environment was permissive enough that couples from countries with restrictive surrogacy laws – including many in Western Europe – faced few obstacles. As The India Forum notes, the factors attracting intended parents included not just cost and medical quality, but the degree of control they could exercise over surrogates’ bodies, and the loopholes available in Indian law at the time.

The “global baby factory” label and what it meant 🔗

As the industry scaled, India began to attract a label that was both economically flattering and ethically uncomfortable: the world’s surrogacy capital. With a turnover of $500 million, the country was described in academic literature as a “global baby factory.” The client base shifted over time – from non-resident Indians and local elites in the early years to predominantly foreign nationals as international media coverage grew. Clinics began offering comprehensive packages for overseas clients that bundled accommodation, travel coordination, and medical services, turning surrogacy into a form of medical tourism with its own infrastructure and economy.

The human cost: exploitation and ethical concerns 🔗

Behind the industry’s growth was a labor force that was almost entirely drawn from one specific demographic: women from poor, often rural, backgrounds who had few other economic options. Understanding this is key to understanding why commercial surrogacy in India eventually became untenable.

Indian surrogates typically earned between $5,000 and $7,000 – a transformative sum for women who might otherwise earn around $300 in an entire year. For many, this made surrogacy an obvious choice. But financial desperation was precisely the problem. When economic need is severe enough, the line between choice and coercion becomes difficult to identify. Women’s rights groups and ethicists raised consistent concerns that surrogates lacked the bargaining power to negotiate fair terms, and that their apparent “consent” was shaped more by poverty than by genuine agency.

Conditions surrogates faced 🔗

The working conditions for surrogates were frequently troubling. Surrogates were often forced into poor living conditions, given inadequate nutrition, and received minimal medical attention beyond what was needed for the pregnancy itself. Many were housed in clinics or boarding facilities and allowed to see their families only on weekends – a practice justified by doctors as protection from social stigma, but one that effectively severed women from their support networks for months at a time. Brokers and middlemen took significant cuts, meaning that what surrogates actually received was a fraction of what intended parents paid.

Studies found that most surrogate mothers considered the process a form of exploitation of their reproductive capacity, with a majority feeling it was comparable to a form of bodily servitude, even as they remained financially dependent on completing it. The fact that most women did not repeat surrogacy – and that only those who did it multiple times could make a meaningful dent in their poverty – illustrated just how limited the long-term benefits actually were.

The question of informed consent 🔗

A consistent concern in the academic literature was whether surrogates genuinely understood what they were agreeing to. Research on surrogates interviewed across Mumbai, Chennai, and Delhi found that while women did not report being physically forced into surrogacy, the decision was heavily shaped by household financial pressures and was often made jointly with husbands, leaving individual agency constrained. Low literacy levels in some cases meant that women signed contracts they could not fully read. The medical and emotional risks of multiple embryo implantations, pregnancy complications, and postpartum recovery were not always communicated clearly. Informed consent, in the meaningful sense, was frequently absent.

Landmark cases that exposed the system’s gaps 🔗

The ethical and legal fragility of the unregulated system became visible through several high-profile cases. The most significant was Baby Manji Yamada v. Union of India (2008), in which a Japanese couple commissioned a surrogate baby in India, then separated before the birth. The intended father could not remain in India due to visa issues, the intended mother had no genetic connection to the child, and Baby Manji was left stateless – neither recognized by Japanese law nor protected by Indian law as a citizen. The case highlighted just how unprepared the legal system was to handle the complex jurisdictional and parental questions that commercial surrogacy generated.

A similar situation unfolded in the Jan Balaz v. Anand Municipality case, where German-born twins delivered through an Indian surrogate were left in legal limbo because German law did not recognize surrogacy as a valid path to parenthood. These cases collectively forced Indian courts and lawmakers to acknowledge that the absence of regulation was not a neutral position – it was actively enabling harm.

The road to regulation: India’s legislative journey 🔗

India’s legislative response to commercial surrogacy was slow, contested, and incremental. The first meaningful attempts at regulation came with a series of Assisted Reproductive Technology (ART) Bills introduced in 2008, revised in 2010, and again in 2014 – none of which were enacted. In 2012, following reports of abandoned children, custody disputes, and medical complications, the Ministry of Home Affairs restricted medical visas for foreign intended parents, marking the first concrete national limit on surrogacy tourism. By 2015, the government suspended all surrogacy-related visas for non-Indian citizens entirely.

The Surrogacy (Regulation) Bill 2016 was the first legislative proposal to ban commercial surrogacy outright. It passed the lower house (Lok Sabha) but lapsed when Parliament adjourned. A revised version passed again in 2019 but was returned by the upper house (Rajya Sabha) for further review. Subsequent revisions in 2020 expanded eligibility slightly – allowing widowed and divorced single Indian women to commission altruistic surrogacy and removing a five-year infertility waiting period – before the legislation finally reached its enacted form.

The Surrogacy (Regulation) Act, 2021: what it says and what it changes 🔗

The Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022. Its central provision is a complete ban on commercial surrogacy. Any financial compensation to a surrogate beyond medical expenses and 36 months of insurance coverage is now illegal. Only altruistic surrogacy – where a close female relative of the intended couple agrees to carry the pregnancy without payment – is permitted.

Key provisions of the Act 🔗

The Act establishes both a National Surrogacy Board and state-level boards to oversee clinic compliance and eligibility assessments. Intended couples must be legally married, heterosexual, and certified as medically infertile. The surrogate must be a close relative, between the ages of 25 and 35, and must already be a mother herself. Intended mothers must be between 23 and 50 years of age; intended fathers between 26 and 55. Surrogacy for foreign nationals, same-sex couples, unmarried individuals, and live-in partners is explicitly prohibited. Violations carry serious penalties: clinics found guilty face up to 10 years imprisonment and fines of ₹10 lakh, while intended parents may face five years in jail and ₹5 lakh in fines.

Criticisms of the Act 🔗

The Act has attracted significant criticism from legal scholars, feminist researchers, and medical professionals. Research published in the journal Sexuality, Gender & Policy finds that altruistic surrogacy is largely a legal fiction in practice – it is extremely difficult for intended couples to find a willing close relative who will undergo pregnancy without compensation. The requirement that the surrogate be a “close relative” also creates power imbalances within families, where women may feel pressured to volunteer without truly consenting.

The Act’s exclusion of LGBTQ+ individuals, single men, and unmarried couples has been widely criticized as reflecting moral conservatism rather than evidence-based policy. Critics argue that restricting surrogacy to heterosexual married couples reproduces existing social hierarchies rather than protecting vulnerable people. There are also concerns that the ban on commercial surrogacy has not eliminated the practice – it has relocated it. After India’s ban, the surrogacy market moved to countries like Ukraine, Georgia, Kenya, and Colombia, following a pattern that feminist scholars had long predicted: commercial surrogacy migrates to wherever economic inequality is greatest and regulation weakest.

The women left behind 🔗

Perhaps the most overlooked consequence of the 2021 Act has been its immediate impact on women who were already working as surrogates or who depended on it for income. When the ban was announced, smaller clinics abandoned surrogates overnight, leaving women mid-pregnancy without support or payment. For those who completed their pregnancies, the income they had relied upon to escape poverty – or to service debts, pay EMIs, and support families – was gone. The ban did not address the underlying economic vulnerability that drove women to surrogacy in the first place; it simply removed one of their options.

This points to a broader tension that runs through the entire history of surrogacy regulation in India: the difference between protecting women from exploitation, and protecting them from poverty. As legal scholars note, the 2021 Act reflects the state’s moral reasoning as much as it does any rational protective framework. By banning commercial surrogacy without providing economic alternatives, the law may have reduced one form of exploitation while intensifying another – the exploitation of economic desperation with no recourse.

Where things stand today 🔗

The Supreme Court of India has since weighed in on the tensions within the Act. In Arun Muthuvel v. Union of India, the Court proposed a middle-ground model: a state-regulated intermediary system that would ensure surrogates are compensated beyond bare necessities, while also maintaining a database to prevent repeated exploitation of the same women. The Court’s reasoning acknowledged what many critics had argued – that a blanket ban without a regulated compensation framework does not protect surrogates; it just makes their situation harder to see.

India’s journey from unregulated fertility tourism hub to a strictly controlled altruistic-only system reflects a genuine reckoning with the ethical costs of commercial surrogacy. But it also illustrates how difficult it is to legislate reproductive labor when the fundamental conditions – poverty, gender inequality, limited economic opportunity for women – remain unchanged. The 2021 Act is not an endpoint. It is, as analysts note, a framework whose value depends entirely on enforcement and on whether the gaps it leaves are addressed in future revisions.

What do you think? If altruistic surrogacy requires surrogates to be close relatives who receive no meaningful compensation, is it actually protecting women – or is it simply making their labor invisible? And given that banning commercial surrogacy in India has shifted the market to other countries, what does an ethical global approach to surrogacy regulation actually look like?

References

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