The Supreme Court of India in a case, Manji Yamada v. Union of India,^[i] observed that in the garb of livelihood, there’s money making racket that is operating at the cost of the health and rights of many poor young women. The 18^th Law Commission report observed that legal issues regarding surrogacy are very complex and must be addressed with a comprehensive legislation in place.^[ii] In the light of the same, the Surrogacy Regulation Act of 2021 (henceforth also referred to as ‘Act’) was brought in force which prohibited any sort of commercial surrogacy arrangement. including for sale, prostitution or any other forms of exploitation.

The notion of privacy has been regarded highly by the courts across the globe. One of the interpretations of the right to privacy, personal liberty also brews an understanding that a woman should be able to exercise her right to exercise her reproductive autonomy as per her wish. Thus, the Act has not completely decriminalised Surrogacy and has allowed an aspect of the same called as ‘Altruistic Surrogacy’, which is an arrangement that “involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.”^[iii]

In order to safeguard the women from any plausible exploitation, the Act has made the entire process highlight scrutinized. So much so that now, as per section 4 of the Act, no woman is allowed to act as a surrogate mother more than once in her lifetime. Further, insurance coverage in favour of the surrogate mother from the time of delivery until expiry of 3 years is to be provided. Now, the intending parents cannot just pick anyone to be a surrogate and undertake the same as their private affair. The intending   couple   or   the   intending   women   are mandated to   approach   the ‘appropriate authority’ (section 35 of the Act) with a willing woman who agrees to act as a surrogate mother and upon the sanction by the same can the process proceed.