Legal Considerations in Surrogacy and Assisted Reproductive Technology

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Legal Considerations in Surrogacy and Assisted Reproductive Technology

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Surrogacy and assisted reproductive technology (ART) have provided hope for many couples and individuals facing infertility issues. However, these technologies bring with them a host of legal, ethical, and social challenges. Legal considerations surrounding surrogacy and ART are complex and vary significantly across different jurisdictions. This article explores the key legal aspects of surrogacy and ART, with a particular focus on the legal framework in India, international perspectives, ethical concerns, and emerging trends.

Understanding Surrogacy and Assisted Reproductive Technology


Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents). There are two main types of surrogacy:

  • Traditional Surrogacy: The surrogate mother is also the genetic mother, as her egg is used in the process.
  • Gestational Surrogacy: The surrogate mother has no genetic link to the child, as an embryo created using the intended parents’ or donors’ gametes is implanted in her uterus.

Assisted Reproductive Technology (ART)

ART encompasses a range of medical procedures used to treat infertility, including in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), egg and sperm donation, and embryo transfer. These technologies involve handling both gametes (eggs and sperm) and embryos outside the human body.

Surrogacy Regulation Bill, 2019

India’s legal framework for surrogacy has evolved significantly over the years. The Surrogacy (Regulation) Bill, 2019, aims to regulate surrogacy arrangements and ensure the welfare of all parties involved. Key provisions include:

  • Altruistic Surrogacy: Only altruistic surrogacy is permitted, where the surrogate mother receives no financial compensation other than medical expenses and insurance.
  • Eligibility Criteria: Surrogacy is restricted to Indian citizens, with specific eligibility criteria for intended parents, including being married for at least five years and proving infertility.
  • Surrogate Mother Requirements: The surrogate must be a close relative of the intended parents, married, and have a child of her own.
  • Regulation and Oversight: Establishment of national and state surrogacy boards to regulate and oversee surrogacy arrangements.

Assisted Reproductive Technology (Regulation) Bill, 2020

The ART (Regulation) Bill, 2020, seeks to regulate the ART industry in India, ensuring safe and ethical practices. Key features include:

  • Registration of ART Clinics: All ART clinics and banks must be registered and adhere to established standards.
  • Donor Anonymity and Rights: Safeguards for the anonymity and rights of donors and patients.
  • Protection of Children: Ensuring the rights and welfare of children born through ART.

International Perspectives

The legal landscape for surrogacy and ART varies widely across the world. Some countries have embraced these technologies with comprehensive regulations, while others have banned or severely restricted them.

United States

In the United States, surrogacy laws vary by state. Some states permit both altruistic and commercial surrogacy, while others have banned it altogether. States like California are known for being surrogacy-friendly, providing legal protections for all parties involved.

United Kingdom

The UK permits altruistic surrogacy but prohibits commercial surrogacy. The legal parentage of the child is determined through a parental order, transferring parental rights from the surrogate to the intended parents.


Australia allows altruistic surrogacy but bans commercial surrogacy. The legal framework varies by state, with some states imposing strict regulations and others being more lenient.

Ethical Considerations

Exploitation and Coercion

One of the primary ethical concerns in surrogacy and ART is the potential for exploitation and coercion of surrogate mothers and donors. Ensuring informed consent and protecting the rights and welfare of surrogates and donors is crucial.

Commodification of Reproduction

The commercialization of surrogacy and ART raises concerns about the commodification of reproduction. The ethical implications of treating human reproduction as a market transaction must be carefully considered.

Rights of the Child

Ensuring the rights and welfare of children born through surrogacy and ART is paramount. This includes considerations of parentage, identity, and access to information about their biological origins.

Cross-Border Surrogacy

With varying legal frameworks across countries, cross-border surrogacy has become increasingly common. This trend raises complex legal issues, including jurisdictional disputes, citizenship, and immigration challenges.

Advances in Technology

Advancements in reproductive technologies continue to evolve, including techniques like mitochondrial replacement therapy and gene editing. These developments present new legal and ethical challenges that require careful regulation.

Ongoing legal reforms are essential to address the evolving landscape of surrogacy and ART. Policymakers must balance the need for regulation with protecting the rights and interests of all parties involved.


Surrogacy and assisted reproductive technology offer hope to many individuals and couples facing infertility. However, these technologies also present significant legal, ethical, and social challenges. A comprehensive and balanced legal framework is essential to protect the rights and welfare of surrogate mothers, donors, intended parents, and children born through these technologies. As the landscape continues to evolve, ongoing legal reforms and ethical considerations will be crucial in navigating the complexities of surrogacy and ART.

Keywords: Legal Considerations in Surrogacy and Assisted Reproductive Technology