The Law of Surrogacy in India—A Critical and Comparative Study with the Laws of the United States and the United Kingdom
摘要
The paper presents a comparative and doctrinal discourse on surrogacy laws in India and places the Surrogacy (Regulation) Act, 2021, into the context of more general constitutional and ethical as well as transnational policies. It contends that the transformation of a commercial into an altruistic exclusive regime is indicative of a protective legislative motivation but creates strains around reproductive autonomy, equality and feasibility of regulations. The paper will show how various districts strike a balance between autonomy, concerns of exploitation and child welfare through structured comparison with two contrasting models of state regulation in the United States and the United Kingdom, which are contract driven or welfare driven. Going beyond the descriptive comparison, this paper critically assesses the proportionality as well as constitutional coherence of India exclusions and compensation ban especially against the backdrop of privacy and equality jurisprudence. It also evaluates enforcement realities, which emphasise the impacts of restrictive formal law on informal or cross-border surrogacy practice in a setting where there is limited institutional capacity. The article proposes a balanced reform agenda that is based on compensated altruism, institutional control, procedural protection as well as harmonisation of the standards with the international human rights. The paper provides a rights-based avenue to a balanced and workable system of surrogacy regulation by combining the doctrinal reasoning and comparative institutional analysis.