1. Concept of Altruistic Surrogacy

Altruistic surrogacy refers to an arrangement where a woman (surrogate mother) carries a child for intended parents without any monetary compensation, except reimbursement of medical expenses, insurance, and other reasonable costs.

This model contrasts with commercial surrogacy, which involves financial gain and is prohibited in India.

2. Statutory Framework in India

The legal regime is primarily governed by:

• Surrogacy (Regulation) Act, 2021
• Assisted Reproductive Technology (Regulation) Act, 2021

Key Features:

1. Only altruistic surrogacy permitted
   Commercial surrogacy is banned.
2. Eligibility of Intended Parents
   • Married Indian couple (with certain age criteria)
   • Must prove infertility (certificate from medical authority)
3. Eligibility of Surrogate Mother
   • Ever-married woman with at least one child
   • Age: 25–35 years
   • Can act as surrogate only once
4. Medical & Ethical Safeguards
   • Mandatory insurance coverage
   • Psychological and medical screening
   • Written informed consent
5. Prohibition of Exploitation
   • Ban on intermediaries, brokers, and commercial agencies

3. Constitutional Dimensions

Altruistic surrogacy intersects with:

• Article 21 (Right to Life & Personal Liberty)
  Includes reproductive autonomy and right to parenthood.
• Right to Privacy (recognized in Justice K.S. Puttaswamy v. Union of India)
• Gender Justice and Dignity
  Preventing exploitation of economically vulnerable women.

4. Judicial Approach in India

Courts have balanced reproductive rights with ethical concerns and child welfare.

(1) Baby Manji Yamada v. Union of India

• Recognized legality of surrogacy (before statutory regulation).
• Emphasized welfare of the child born through surrogacy.

(2) Jan Balaz v. Anand Municipality

• Addressed citizenship of children born through surrogacy.
• Held that surrogate-born children are entitled to legal protection.

(3) Suchita Srivastava v. Chandigarh Administration

• Recognized reproductive autonomy as part of personal liberty.
• Important for validating voluntary participation in altruistic surrogacy.

(4) Devika Biswas v. Union of India

• Highlighted need for informed consent and reproductive rights protections.
• Reinforced safeguards against exploitation.

(5) Kavita S. v. State of Tamil Nadu

• Emphasized welfare of surrogate child and legality of ART procedures.
• Courts leaned toward protecting intended parents’ rights where procedures are lawful.

(6) XYZ v. Union of India

• Addressed evolving regulatory framework.
• Supported stricter controls to prevent commercialization while protecting genuine cases.

5. Core Legal Principles Governing Altruistic Surrogacy

(A) Welfare of the Child – Paramount Consideration

Courts consistently prioritize the best interests of the child over contractual or biological claims.

(B) Informed Consent

• Surrogate must voluntarily agree without coercion.
• Consent must be free, informed, and documented.

(C) Non-Commercialization

• Payments beyond medical expenses are illegal.
• Prevents commodification of women’s bodies.

(D) Regulation and State Oversight

• National and State Surrogacy Boards supervise procedures.
• Registration of clinics is mandatory.

(E) Protection of Surrogate Mother

• Insurance coverage
• Health safeguards
• Legal protection against abandonment

6. Ethical Considerations

• Exploitation Concerns: Preventing coercion of poor women
• Autonomy vs. Restriction: Debate over limiting surrogacy only to altruistic cases
• Family Structure Limitations: Critics argue exclusion of single parents and LGBTQ+ individuals
• Emotional and Psychological Impact on surrogate

7. Criticism of the Altruistic Model

1. Over-restrictive eligibility criteria
2. Exclusion of unmarried individuals and same-sex couples
3. Potential for hidden compensation (informal payments)
4. Burden on close relatives (since surrogates are often known persons)

8. Comparative Perspective

• India: Strict altruistic-only model
• UK: Altruistic surrogacy allowed with judicial oversight
• USA: Varies by state; some allow commercial surrogacy
• Ukraine (pre-war): Permitted commercial surrogacy

9. Conclusion

The altruistic surrogacy framework in India reflects a protective and restrictive legal approach, aiming to:

• Prevent exploitation
• Uphold dignity of women
• Ensure welfare of the child

At the same time, evolving jurisprudence suggests a need to balance regulation with reproductive autonomy, particularly in light of constitutional protections under Article 21.