Project on Surrogacy in the Perspective of Indian Family Law

Introduction:

Surrogacy, a complex and multifaceted concept, has gained significant attention in the Indian legal landscape in recent years. As an alternative to traditional
methods of family-building, surrogacy has raised various ethical, legal, and social considerations, particularly in the context of Indian family law. This project
aims to provide a comprehensive analysis of the legal framework governing surrogacy in India, with a focus on the evolving case law and the implications for
Indian families.

Legal Framework for Surrogacy in India:

The legal regulation of surrogacy in India has been a subject of ongoing debate and legislative changes. Over the past decade, the country has witnessed the
emergence of various laws and policies aimed at addressing the growing concerns surrounding surrogacy.

The Surrogacy (Regulation) Act, 2021:

The Surrogacy (Regulation) Act, 2021, is the primary legislation governing surrogacy in India. This Act was introduced to regulate and supervise the practice of
surrogacy, ensuring the protection of the rights of all stakeholders involved, including the surrogate mother, the intended parents, and the child.

Key provisions of the Surrogacy (Regulation) Act, 2021:

- Defines surrogacy and prohibits commercial surrogacy, allowing only altruistic surrogacy.

- Restricts the eligibility criteria for intended parents, including age, marital status, and medical conditions.

- Mandates the establishment of Surrogacy Boards at the national and state levels to oversee the implementation of the Act.

- Imposes penalties for violations of the Act, including imprisonment and fines.

The Assisted Reproductive Technology (Regulation) Act, 2021:

Alongside the Surrogacy (Regulation) Act, the Assisted Reproductive Technology (Regulation) Act, 2021, also plays a significant role in the legal framework
governing surrogacy in India. This Act regulates the practice of assisted reproductive technology (ART), which includes surrogacy.

Key provisions of the Assisted Reproductive Technology (Regulation) Act, 2021:

- Defines and regulates various forms of ART, including surrogacy.

- Establishes the National Board and State Boards for the regulation of ART clinics and banks.

- Mandates the registration of ART clinics and banks, and the maintenance of records.

- Imposes penalties for violations of the Act, including the suspension or cancellation of registration.

Case Law Developments:

The Indian judiciary has played a crucial role in shaping the legal landscape of surrogacy through various landmark judgments. These case law developments
have significantly influenced the interpretation and application of the existing laws, as well as the evolving policy decisions.

1. Baby Manji Yamada v. Union of India & Anr. (2008):

This case involved a Japanese couple who commissioned a surrogate mother in India to carry their child. After the birth, the intended parents divorced, and
the child's custody became a matter of contention. The Supreme Court of India recognized the legal status of the child and the need for a comprehensive legal
framework to regulate surrogacy.

2. Jan Balaz v. Anand Municipality & Ors. (2010):

In this case, the Gujarat High Court addressed the issue of the legal status of children born through surrogacy to foreign nationals. The court highlighted the
need for a regulatory framework to govern surrogacy and the importance of protecting the rights of all parties involved.

3. Karan Balaji v. Union of India & Ors. (2015):

The Delhi High Court, in this case, examined the constitutionality of the ban on commercial surrogacy for foreign nationals. The court emphasized the need for
a balanced approach that considers the rights and interests of all stakeholders, including the surrogate mother and the intended parents.

4. Suku Sadan v. Union of India & Ors. (2019):

This case, heard by the Kerala High Court, addressed the issue of the legality of international commercial surrogacy arrangements. The court highlighted the
need for a comprehensive legal framework to ensure the protection of the rights of all parties involved in surrogacy.

5. Jan Balaz v. Union of India & Ors. (2021):

The Supreme Court of India, in this case, considered the question of the legal status of children born through surrogacy to foreign nationals. The court's
decision emphasized the importance of safeguarding the rights and welfare of the child, and the need for a clear regulatory framework.

The Impact of Surrogacy on Indian Families:

The legal developments surrounding surrogacy have had a significant impact on Indian families, both in terms of their ability to access surrogacy services and
the protection of their rights and interests.

Accessibility and Affordability:

Prior to the recent legislative changes, India's relatively affordable surrogacy services and flexible regulatory environment attracted a large number of foreign
intended parents. However, the Surrogacy (Regulation) Act, 2021, has introduced stricter eligibility criteria and banned commercial surrogacy, limiting the
accessibility of surrogacy services for certain individuals and families.

Ethical Considerations:

The legal framework surrounding surrogacy has raised various ethical concerns, particularly regarding the exploitation of vulnerable women, the
commodification of the human body, and the potential for the exploitation of the surrogate mother. The Surrogacy (Regulation) Act, 2021, aims to address
these concerns by introducing safeguards and restricting the practice of commercial surrogacy.

Implications for Family Building:

The legal restrictions on surrogacy have had a significant impact on the ability of Indian families, particularly those facing infertility or other medical conditions,
to build their families through surrogacy. The eligibility criteria and the ban on commercial surrogacy have limited the options available to these families,
leading to increased complexity and uncertainty in their family-building process.

Conclusion:

The legal regulation of surrogacy in India has been a complex and evolving landscape, marked by the introduction of the Surrogacy (Regulation) Act, 2021, and
the Assisted Reproductive Technology (Regulation) Act, 2021. These legislative changes, coupled with the influential case law developments, have significantly
shaped the legal framework governing surrogacy in the country.

The impact of these legal developments on Indian families has been multifaceted, with implications for accessibility, affordability, and ethical considerations. As
the legal landscape continues to evolve, it is crucial for policymakers, legal practitioners, and stakeholders to engage in ongoing dialogue and collaboration to
ensure that the rights and interests of all parties involved in surrogacy arrangements are protected, while also addressing the complex social and ethical
concerns that surround this practice.