Because there are women who, for various physiological reasons, are unable to bear children of their own, surrogacy has the potential to become a more acceptable form in the contemporary pattern of family construction for more infertile and involuntarily childless individuals as a result of developments in medical knowledge, legislative reform, and shifts in social practices. Due to the availability of low-cost prospective surrogates and the absence of a complete piece of law, surrogacy has gained popularity in India despite the fact that it comes with a number of complications and unknown societal effects. Human rights violations and surrogacy-related crimes, according to researchers, have increased since India allowed surrogacy to operate unchecked for financial gain. As a result, issues of trustworthiness, legality, and ethics surrounding these clauses remain unsettled and contentious. This study aims to inform readers on the law surrounding surrogacy, analyze the most pressing problems with the current surrogacy laws in India in the light of court comments, and provide some approaches to resolving this pressing issue that has afflicted the Indian legal system for decades. This study also intends to compare and contrast the surrogacy policies and attitudes of few other countries.

Nature has given upon women the exquisite ability to generate a life, and every woman values her time as a mother. The ability to have children is a fundamental human right. The urge to start a family is a universal one for married couples. Having children is one of the greatest joys of life. However, many people in this world are unable to start a family for a variety of reasons. Approximately 10-15% of couples worldwide experience infertility each year, according to a report by the World Health Organization.[1]

Surrogacy has evolved as a cutting-edge scientific method of reproduction that can help couples who are struggling with infertility for a variety of reasons, including those related to their own biology or the social environment. One woman aiding another woman is an admirable goal, and this is the fundamental notion behind surrogacy, so it's no surprise that this practice has garnered a lot of support and praise. Infertile couples see surrogate parenthood as a godsend since it offers them revolutionary hope for having a kid.

The number of surrogacy cases in India has skyrocketed in recent years. This booming reproductive tourism sector in India is the result of a combination of factors, including the desire to have a child of one's own flesh, blood, and DNA, advancements in technology, and the ability to spend money, as well as the entrepreneurial spirit of the Indian people. As reported by the National ART (artificial reproductive methods) Registry of India (NARI), the number of instances increased by about 300 percent, from around 50 in 2004 to 158 in 2005. Seventy-five of these occurrences have been traced back to the state of Gujarat alone; the remaining cases have been recorded from other large cities in India, including Chennai (16), Hyderabad (15), and other places.[8]  Many ladies from the United States, Russia, and Great Britain have already signed up with clinics like Anand's Akankshya Clinic and Bhopal's Test Tube Baby Centre to undergo the surgery.[9] Surrogacy arrangements of India have been called "baby booming business," "womb on hire," "baby company," and "parenthood by proxy" by their detractors[10]. When compared to other nations, India's cheap living costs and the fact that the complete surrogacy process may be paid for with relatively little sums of money explain why the country has seen a recent surge in the number of babies born via the operation. Surrogacy services are currently available in over three hundred fifty clinics around the world, contributing to a market size of over $500 million each year.[11]

There is no question that the Indian judicial system has attempted to regulate state policy regarding reproductive rights and commercial surrogacy through a number of statutes and recent acts, but the broader picture shows that there are still problems with the way these policies are being put into practice. The new Bill's groundbreaking measures aim to outlaw commercial surrogacy nationwide while allowing altruistic surrogacy in an effort to reduce the exploitation of low-income women. Unfortunately, the legitimacy of surrogacy legislation is called into doubt due to an unfair gap between them and fundamental rights. According to precedent set in cases like K.S. Puttaswamy v. Union of India[16] and Suchita Srivastava v. Chandigarh Admn.[17], the state has no business deciding how a couple chooses to start a family or raise their children. As the cases Navtej Singh Johar v. Union of India[18] and National Legal Services Authority v. Union of India[19] show, the bill also challenges the state's fundamental commitment to guarantee the absence of bias and discrimination in the provision of reproductive health services, including surrogacy.

To learn more about the causes of the confusing challenges and concerns with India's surrogacy regulations and how they could be remedied, more study is needed. This paper perhaps covers the Indian regulations of surrogacy and associated challenges by examining a variety of issues, challenges decisions, and studies regarding surrogacy laws.

The study's objective is to ascertain the concerns surrounding India's surrogacy policy and provisions and the requirement of reforming it. The scope of the study includes determining various laws and parameters Governing Indian surrogacy norms, as well as the challenges and issues confronting the current surrogacy provisions and the need for addressing the same. The landmark cases related to the Surrogacy in India as well as are also analyzed. Additionally, the surrogacy regimes of other countries are analyzed, including the countries like USA, Russia, and Mexico

It is theorized that the current legal rules of surrogacy in India have a number of obstacles and problems that need to be addressed in order to bring an organized, well-balanced surrogacy policy in India.

For the study, qualitative research was conducted utilizing secondary data, which included many case laws, research papers, books on law written by notable experts in the area, and journal articles and websites of different governmental and non-governmental agencies and organizations.

India Commercial surrogacy is illegal and punishable under current surrogacy law, but altruistic surrogacy is permitted so long as just the costs of medical care and insurance are covered. In addition, the law covers the criteria for the surrogate (close relative, 25–35 years old, married, own child) and the intended parents (married couple or divorced/widowed women subject to certain Medical and age restrictions) as well as the conditions under which surrogacy is permissible, and a regulatory framework for governing surrogacy clinics.[20]

While the Acts finally regulated the industry, they also brought a wide-ranging ethical and social repercussions as well as number of concerns to the legal domain-including rights, scientific advances, cross-border surrogacies, obligations as well as ethical dilemmas.

Surrogacy laws are discriminatory, unfair, and irrational, violating Articles 14 and 15(1) of the Declaration of Human Rights. Forcing infertile heterosexual married couples or single widowed or divorced women to use altruistic surrogacy while denying the same right to LGBTQ + people, live-in couples, older couples, and single parents is illogical and discriminatory.

Despite the Supreme Court's rulings that adult consensual sexual activity is no longer a crime (in the landmark case of Navtej Singh Johar v. UOI[21]) and that living in a live-in relationship is not illegal per se in the country (in the case of Madan Mohan Singh v. Rajni Kant[22]), the practice continues to be illegal in many places. The Supreme Court's decisions have not been incorporated into these statutes, and they have presented conflicting views on the subject of relationship equality across the country.

Simply labeling altruistic surrogacy as "social and moral deed of the highest degree" that "sets an example of being a model woman in society" is unfair, in the eyes of surrogates.

Denial of a legitimate source of income to  surrogates have in turn severely limited the number of women willing to go through surrogacy, and indirectly denied intending parents the opportunity to avail of it.

Completely outlawing commercial surrogacy and punishing medical professionals who break the law with a maximum of five years in prison and fine may look wonderful on paper, but they are effectively putting an end to the surrogacy industry. Surrogate births have decreased over the years, according to the most recent statistics, perhaps due to ambiguity regarding the legality clause. All medical professionals agree that surrogate parenthood is a risky option for childless couples.

The competing agendas of surrogacy's many players are at the heart of the dispute around the practice. On the one hand, it is the responsibility of the state to safeguard the surrogate's rights and the welfare of the unborn child. The right to parenting and the freedom of women to control their own bodies are countered by the right to abortion. India's surrogacy regulations have a hard time juggling all of these competing priorities.

The new legislation made it more difficult for persons with lower means to access ART services because of the expensive registration costs and onerous regulatory procedures. Smaller clinics were similarly hindered by the regulations.

There is a violation of Article 19 and, more particularly, Article 19(1)(g), which protects the "freedom of trade and profession" in India, by the surrogacy statute that is now in effect. Both surrogate moms and the several surrogacy clinics in the nation rely heavily on income from the surrogacy sector. The interests of many parties involved in the commercial surrogacy sector would be jeopardized by a complete prohibition on the practice, making it impossible to defend as a reasonable limitation.

Although a married Indian man and woman over the age of 21 are included in the definition of a "intending couple" in Sections 2(1)(h) and 2(1)(r), an eligibility certificate must be issued to the couple only if the male member of the couple is between the ages of 26 and 55, and the female member is between the ages of 23 and 50, per Section 4(iii)(c) as a compliance provision. No surrogacy services may be obtained without this certification. Since different sections of the laws set different minimum age for eligibility, it would be impossible to administer the law in a consistent manner.

India is in flagrant breach of its duties under a number of international treaties due to its discrimination against specific groups and its failure to protect the right to "human life, health," and dignity. The law breaches the "right to form a family" guaranteed by Article 16 of the Universal Declaration of Human Rights by interfering with the reproductive rights of individuals.

The current version of the Surrogacy Laws aims to do two things: (1) clean up India's formerly uncontrolled surrogacy business by putting hundreds of ART and surrogacy clinics inside the scope of the law, and (2) reduce the exploitation of surrogates and children born via surrogacy. Although the lawmakers' goals were honorable, their measures were not. While the 2021 legislation do include several of the Center's and its partners' suggestions, advocates and activists have pointed to exceptions and gaps that call for further work to be done in the area of lobbying and policymaking. Surrogacy should be seen as a right, not a need, and this recognition is urgently required. When discussing reproductive health, a rights-based perspective requires the State to play a pivotal role in advancing reproductive rights and freedoms. Those who are within their rights under the law and in terms of human dignity should not be disadvantaged by state involvement if they choose to use a surrogate. It's crucial to establish rules for the surrogacy industry that benefit everyone involved. The carefree attitude of the surrogacy sector, the lack of regulation that permits human rights breaches, citizenship concerns, health policy, and a host of other problems, must be addressed.

Protecting the rights of surrogates, children born via surrogacy, and ART donors requires a shift in the current legal and policy paradigm, which may be achieved by frequent dialogue with relevant parties. Surrogacy services should be available without regard to a person's marital or sexual orientation or one's gender identity, and this should be the focus of any advocacy work in this area. The Supreme Court's ruling in NALSA and international agreements call for modification of these laws. All parties are on equal footing before the law, rather than being restricted by a medico-technical regulatory mechanism that prioritizes prohibition. When weighing security against other considerations, such as the freedom and confidentiality of individuals involved, the State must strike a fair and reasonable balance, being careful not to overstep its bounds in a free and open society.

Consistent with other contracts and the principles of the India Contract Act of 1872, surrogacy agreements should be fair to both parties. It  must crater to cover  losses in terms of health, wages, sufferings, and mortality, any expenditure incurred in relation to the pregnancy, including maternity clothing, additional nutrient supplements to sustain the pregnancy, dietary expenditure for surrogate mother .There should be a fair balance between the surrogate mother's responsibilities and the safeguarding of her rights, and the terms and circumstances should be made crystal clear. All surrogacy practices should standardize the surrogate mother's role in respect to the commissioned parents and the kid. It's possible that a contract might include provisions like-

Surrogacy should not be banned completely, but rather adequate rules should be explored for the protection of the vulnerable parties involved in the arrangement. Every country looking to legalize commercial surrogacy should look to Israel's approach, which strikes a good compromise between the requirements of society and those of private people. It's important to keep in mind that even though commercial surrogacy is illegal, it continues to grow through underground channels. As a result, it's in everyone's best interest to adopt a standardized legal agreement of commercial surrogacy in line with the feminist movement, complete with additional checks and balances, transparency, and registration of surrogacy contracts to guarantee that surrogate mothers are fairly compensated and that no middlemen profit from the arrangement.

2021 act only permits for gestational surrogacy. Traditional method where woman can provides her gametes as a surrogate is prohibited under Section 4(iii) (b) (III). However latter method is a less costly affair and bliss to LGBTQ couples and reproductively challenged women.

Although India is undergoing a revolutionary period in which citizens' thinking is shifting away from patriarchal norms and toward a more feministic ethos, the current surrogacy legislation is a straightforward example of transphobia, authoritarian compliance of societal beliefs, and bias against non- heterosexist relationships, serving as a black spot on India's progressive growth of the principle of equality.. As India is a significant center for these activities, it is important to recognize that the new laws are a positive development; yet, there are still some grey areas that need to be clarified. Laws need to be dynamically monitored to make sure they adapt to new technologies, moral standards, and social norms. Surrogacy legislation in India would be unable to safeguard the surrogate's bodily autonomy and the intended parents' rights to parenting until such changes are made and surrogacy is legally recognized as a reproductive right (s).

5        Law Commission Report 228Th Report  “Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy”

[3] Law Commission Report 228Th Report  “Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy”