WHOSE BODY, WHOSE CHOICE? SURROGACY LAWS AND WOMEN’S AUTONOMY IN INDIA

Abstract

Surrogacy law in India sits at the intersection of reproductive autonomy, women’s labour, constitutional rights, and moral regulation by the state. For nearly two decades, the country functioned as a global hub for commercial surrogacy, attracting commissioning parents from across the world while relying on economically vulnerable Indian women as surrogates. Allegations of exploitation, abandonment of children, and commodification of women’s bodies eventually led to the enactment of the Surrogacy (Regulation) Act, 2021, which bans commercial surrogacy and permits only altruistic arrangements under narrow conditions. This legal transition raises a fundamental question: does the current framework genuinely protect vulnerable women, or does it suppress their autonomy by denying them the right to use their reproductive capacities as a form of work and economic self-determination? This paper undertakes a doctrinal and sociolegal analysis of surrogacy laws in India through the lenses of Articles 14 and 21 of the Constitution, feminist legal theory, and empirical research on surrogates’ lived experiences. It critically evaluates the shift from unregulated commercial surrogacy to a prohibitionist altruistic-only model and argues that while regulation is necessary to curb abuse, the current law is overly paternalistic and restricts women’s bodily and economic autonomy. It concludes that a rights-based framework grounded in informed consent, labour protections, and inclusive definitions of family is more consistent with constitutional values than the present restrictive regime.