IVF AND SURROGACY RIGHTS OF DONORS AND SURROGATES

This article is written by Kashish Varshney, Barkatullah University, Bhopal, an intern under Legal Vidhiya.

ABSTRACT

Assisted Reproductive Technologies (ART), including In Vitro Fertilization (IVF) and surrogacy, have revolutionized reproductive healthcare, offering new pathways to parenthood. However, these advancements raise complex legal, ethical, and human rights questions, particularly concerning the rights of gamete donors, surrogate mothers, and children born through ART. This paper offers a critical analysis of the statutory framework regulating Assisted Reproductive Technology (ART) and surrogacy in India, with particular emphasis on the provisions and implications of the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021. It explores the rights and protections afforded to stakeholders, highlights gaps in implementation, and analyses the findings of the National Human Rights Commission (NHRC) study on surrogate mothers. Through a comparative lens, the paper evaluates regulatory models in the United States and the United Kingdom to identify best practices and challenges. Ultimately, the research underscores the need for a rights-based, inclusive, and ethically sound approach to ART regulation in India, balancing technological progress with human dignity and legal safeguards.

KEYWORDS

In vitro fertilization (IVF), surrogacy, ART Regulation Act, Surrogacy Regulation Act, altruistic surrogacy, comparative law, reproductive rights.

INTRODUCTION

In India, motherhood is often seen not just as a personal milestone but as a social expectation. One deeply tied to a woman’s identity, dignity, place within the family, and her contribution to the lineage. In a society where patriarchal norms still shape everyday life, leaving women who cannot conceive to face silence, shame, and isolation. Infertility becomes a social burden, not just a medical condition. It interrupts the generational continuity families value and disrupts the hierarchy they seek to preserve.

Assisted reproductive technologies emerged as a lifeline. They offered possibilities where biology faltered and hope where tradition-imposed limits. The Assisted Reproductive Technology (Regulation) Act, 2021, along with the Surrogacy (Regulation) Act, 2021, introduced a framework to govern these possibilities. Clinics now face scrutiny. Surrogates receive legal recognition. Donors gain visibility. Yet, questions remain. Do these laws reflect the realities women live? Do they protect choice, autonomy, and dignity? These questions lie at the heart of this paper, which critically examines the legal and ethical contours of assisted reproductive technologies (ARTs) in India, with a particular focus on in vitro fertilization (IVF) and surrogacy.

The paper begins by unpacking the foundational concepts of IVF and surrogacy-what they entail, how they function, and why surrogacy, especially commercial surrogacy, has been subject to legal prohibition in India. It then explores the evolution of ARTs in the Indian context, tracing their trajectory from medical innovation to regulated practice.

Central to this inquiry is the legal framework established by the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, which together aim to regulate reproductive services while balancing ethical concerns. The paper dives into the rights of gamete donors, the legal status and protections afforded to children born through ART and surrogacy, and the implications for surrogate mothers.

Drawing on empirical evidence and a human rights lens, the paper interrogates whether these laws uphold reproductive justice or perpetuate structural inequalities. A comparative analysis with international legal regimes further illuminates gaps and possibilities for reform, ultimately questioning whether India’s regulatory approach aligns with global standards of reproductive autonomy and dignity.

UNDERSTANDING IVF AND SURROGACY

IVF is in vitro fertilization. It’s a medical process where a woman’s egg and a man’s sperm are joined together outside the body. Once they form an embryo, it is placed into the woman’s uterus to grow into a baby. IVF may involve the use of donor gametes (sperm or egg) when the intending parents are unable to contribute biologically. Surrogacy, on the other hand, is an arrangement where a woman (the surrogate) carries a child for another person or couple. It means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.[1] It is a fertility treatment that may or may not require you lending your genes to create an embryo, but the resulting embryo is transferred into the uterus of another woman who will carry the baby to full-term on your behalf. There are two types of surrogacy: one is altruistic surrogacy, and the second is commercial surrogacy. Altruistic surrogacy means she is doing it free of cost for the larger interest of humanity. The Second one is for the purpose of money; that is commercial surrogacy. So, both of these are regulated. How whether they are prohibited will be discussed in the legislation. Here the lady who is going to carry the pregnancy will in no way be related to the child that is going to be born. Here the egg and the sperm from the intending couple will be placed in the uterus of the surrogate mother; that means she is renting her womb or uterus.

Both IVF and surrogacy involve third-party participation, raising legal questions about consent, compensation, parental rights, and the status of the child. The regulation of these procedures is essential to prevent exploitation, ensure informed decision-making, and uphold the dignity of all parties involved.

WHAT IS ASSISTED REPRODUCTIVE TECHNOLOGY (ART)?

Assisted Reproductive Technology (ART) means using medical help to have a baby when it’s hard to get pregnant naturally. These complex treatments involve manipulating/influencing gametes, or eggs and sperm, to increase the chances of fertilization. ART is also defined as infertility treatment procedures. It refers to all methods, including their different forms and related terms, that aim to achieve pregnancy by working with sperm or eggs outside the body and then placing the gamete or embryo into a woman’s reproductive system. In 2018, the global Assisted Reproductive Technology (ART) market was valued at $21.32 billion, and it is expected to grow significantly—reaching around $45.06 billion by 2026.[2] ART has many medico-ethico-legal issues, including extracting oocyte/sperm, storing them, donating, renting the womb, child birth, and commercialization, etc., which has created trouble across the world. Hence, the rules for this were thought out. There are several authorities to regulate ART, such as the National Assisted Reproductive Technology and Surrogacy Board, the State Assisted Reproductive Technology and Surrogacy Board, the National Assisted Reproductive Technology and Surrogacy Registry, and the Appropriate Assisted Reproductive Technology and Surrogacy Authority.

LEGAL FRAMEWORK IN INDIA

The Government of India began efforts to regulate the assisted reproductive technology (ART) sector in 2008, following the initial draft of legislation prepared by the Indian Council of Medical Research (ICMR). But however, it was more of a guideline, and hence there is no hard law. This is a rapidly growing industry without regulations; hence, this law was passed in the parliament to regulate these contentious medico-ethical-legal issues around ART. India’s legal framework governing IVF and surrogacy is primarily shaped by two statutes: the Assisted Reproductive Technologies (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021. These statutes were introduced to regulate the rapidly expanding fertility industry, ensure ethical practices, and safeguard the rights of all parties involved.

The Assisted Reproductive Technology (Regulation) Act, 2021

This law was passed on the 18^th of December in 202, and this law is considered one of the most landmark pieces of advanced medical technology legislation. An Act for the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for becoming a parent or for freezing gametes, embryos, or embryonic tissues for further use due to infertility, disease, or social or medical concerns, and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.[3]

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was enacted to regulate surrogacy in India and was passed on 25 December 2021. An act to constitute the National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards, and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.[4]

It permits only altruistic surrogacy for Indian married couples and intending women, while banning commercial surrogacy, foreign commissioning parents, and surrogacy for single men or LGBTQ+ individuals. The surrogate mother must be a married woman between the ages of 25 and 35, and she should have at least one biological child of her own. She is entitled to medical care and insurance coverage for 36 months but cannot receive monetary compensation beyond reasonable expenses.

Together, these laws aim to create a transparent and accountable system for reproductive technologies.

RIGHTS OF STAKEHOLDERS IN ART AND SURROGACY

Rights of Gamete Donors in India

Gamete donors in India are required to provide informed consent before donation. Their identities are kept confidential, and they have no legal claim over the child born through their gametes. The ART Act prohibits commercial donation, allowing only reasonable expenses to be reimbursed. While this protects donors from exploitation, it also limits their autonomy and recognition.

Donors are not considered legal parents and bear no responsibility for the child. However, the lack of a national registry and limited post-donation support raise concerns about traceability, health monitoring, and ethical oversight.

Rights of Surrogate Mothers

First of all, who is a surrogate mother? So, surrogate mother means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of an embryo in her womb. [5]Rights of surrogate mothers under the Surrogacy (Regulation) Act, 2021

1. Rights to Informed Consent—Section 6
2. The surrogate mother is required to provide written informed consent before any surrogacy procedure is carried out.
3. She must be fully aware of the medical, legal, and emotional implications of the process.
4. Right to Medical and Insurance Coverage—Section 4(ii)(b)
5. Only altruistic surrogacy is permitted, meaning the surrogate mother cannot receive payment beyond medical expenses and insurance coverage for 36 months to cover any health complications arising from the pregnancy.
6. Right against forced Abortion—section 7
7. No person, including relatives or the intending couple, can force the surrogate mother to undergo an abortion unless medically necessary and prescribed by law.
8. Right to Protection from Exploitation—Section 38
9. The Act stops people from making money through surrogacy and protects women who become surrogate mothers from being treated unfairly. Only unpaid, caring surrogacy is allowed, where the woman helps out of kindness, not for payment.

Any violation is punishable with imprisonment and fines.

Rights of a child born through ART

1. The child born through assisted reproductive technology shall be deemed to be a biological child of the commissioning couple, and the said child shall be entitled to all the rights and privileges available to a natural child only from the commissioning couple under any law for the time being in force.
2. A donor shall relinquish all parental rights over the child or children which may be born from his or her gamete.[6]

Rights of Surrogate Child

A child born through surrogacy is legally recognized as the biological child of the intending couple or intending woman who commissioned the procedure. This means that the surrogate child is not considered the child of the surrogate mother but of the individuals who intended to become parents. As a result, the child is entitled to all rights and privileges that a natural-born child would enjoy under existing laws. These include inheritance rights, citizenship, and access to family benefits. The provision ensures that the surrogate child is treated equally and protected under the legal framework governing parent-child relationships.

EMPIRICAL EVIDENCE AND HUMAN RIGHTS PERSPECTIVE

NHRC study summary: Legal rights and challenges of surrogate mothers

A comprehensive study conducted by the Council for Social Development, New Delhi, and financially supported by the National Human Rights Commission (NHRC), explored the lived experiences of surrogate mothers in metropolitan cities like Mumbai and Delhi. The study foregrounds the legal, emotional, and socio-economic vulnerabilities faced by women who rent their wombs in the absence of robust legal safeguards. The research shows that many women entered into surrogacy agreements without fully understanding the legal documents they were signing. In several cases, they were pressured by agents or clinics and had little say in the process. Although they were promised good financial rewards, most received only small payments, and intermediaries often kept a large share. The physical and emotional impact was also significant—women faced health issues due to hormone treatments and were often forced to undergo caserean deliveries. After giving birth, many struggled with emotional distress, especially because they had no contact with the child and were given little support. Social stigma added to their isolation, as many felt the need to hide their pregnancies from their communities.

Importantly, the study highlights that these women had no clear legal protection. There were no rules to ensure they received proper medical care after delivery, insurance coverage, or help if the contract was broken. These findings raise serious concerns about the protection of basic rights, especially the right to live with dignity (Article 21 of the Constitution) and the right to equality (Article 14). Surrogacy, in this context, is not just a medical or financial arrangement—it becomes a matter of human rights and justice.

COMPARATIVE LEGAL ANALYSIS

United States

In the U.S., surrogacy laws vary by state. Some states permit commercial surrogacy and enforce surrogacy contracts, while others prohibit it entirely. Donors may be anonymous or known, and compensation is allowed. The legal parentage of the child is established through pre-birth or post-birth orders, depending on the jurisdiction.

Surrogates in states like California enjoy strong legal protections, including enforceable contracts, compensation, and access to legal counsel. Donors may retain limited rights depending on the agreement.

United Kingdom

The UK permits only altruistic surrogacy under the Human Fertilisation and Embryology Act, 2008. Surrogacy agreements are not legally binding, and the surrogate is considered the legal mother until a parental order is granted. Donors are anonymous, and compensation is limited to reasonable expenses.

While the UK model emphasizes ethical safeguards, the lack of enforceable contracts and delayed parentage transfer can create legal uncertainty.

CHALLENGES AND ETHICAL CONCERNS

India’s restrictive approach to surrogacy and gamete donation raises several challenges. The exclusion of single men, LGBTQ+ individuals, and foreign nationals limits reproductive autonomy and equality. The ban on commercial surrogacy may push the practice underground, increasing the risk of exploitation and lack of oversight.

The lack of post-donation support for gamete donors and limited recognition of surrogate mothers’ contributions reflect a narrow understanding of reproductive labor. Ethical concerns around consent, compensation, and emotional impact remain inadequately addressed.

CONCLUSION

The Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, mark a significant shift in India’s approach to reproductive rights and medical ethics. These legislations are commendable for their clarity and scope. They prohibit exploitative practices such as commercial surrogacy, regulate ART clinics and procedures, and safeguard the interests of donors and surrogate mothers. The establishment of a National ART and Surrogacy Registry and the provision of insurance coverage for surrogate mothers for up to 36 months are progressive steps towards institutional accountability and maternal welfare.

The integration of both acts ensures procedural consistency and legal coherence across IVF and surrogacy services. However, the laws are not without criticism. The blanket prohibition on commercial surrogacy may inadvertently restrict access and reduce participation, especially among women who view surrogacy as a legitimate source of income. Expecting altruistic surrogacy alone, without compensating women for lost income or time, risks overlooking the socio-economic realities of surrogate mothers. Moreover, the legislation remains silent about the freedom and rights of the surrogate mother during pregnancy, which could have been discussed.

Similarly, while the ART Act regulates donor anonymity and clinic standards, it lacks provisions for long-term support or recognition of donors’ contributions. Both laws could benefit from more inclusive frameworks—recognizing single individuals and LGBTQ+ families and allowing regulated compensation for surrogates. In conclusion, while these acts lay a robust foundation for ethical reproductive practices, they must evolve to reflect the lived experiences and rights of all stakeholders involved.

REFERENCES

1. The Assisted Reproductive Technology (Regulation) Act, No. 42 of 2021, Acts of Parliament, 2021(India).
2. The Surrogacy (Regulation) Act, No. 47 of 2021, sec 2(zg), Acts of Parliament, 2021 (India).
3. The Constitution of India (1950), Government of India, Ministry of Law and Justice.
4. National Human Rights Commission,

https://nhrc.nic.in/sites/default/files/Report_NHRC_Surrogacy_24122018.pdf

[1] The Surrogacy (Regulation) Act, No. 47 of 2021, sec 2(zd), Acts of Parliament, 2021 (India).

[2] Fortune Business Insights, https://www.fortunebusinessinsights.com/industry-reports/assisted-reproductive-technology-art-market-101811,

[3] The Assisted Reproductive Technology (Regulation) Act, No. 42 of 2021, Long title, Acts of Parliament, 2021(India).

[4] The Surrogacy (Regulation)Act, Act, No. 47 of 2021, Long title, Acts of Parliament, 2021(India).

[5] The Surrogacy (Regulation) Act, No. 47 of 2021, sec 2(zg), Acts of Parliament, 2021 (India).

[6] The Assisted Reproductive Technology (Regulation) Act, No. 42 of 2021, sec 31, Acts of Parliament, 2021(India).

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Hitesh Prajapat