Transnational Surrogacy and the Legal Vacuum: Rethinking Indian Regulation in a Globalized Reproductive Market

"Reproductive tourism," presents a complex web of legal and ethical considerations. The Ministry of Health and Family Welfare enacted “Surrogacy (Regulation) Act, 2021” hereinafter to be referred as “Surrogacy Act” on 25th December 2021, as India became a tourism hotspot for international surrogacy. The Surrogacy Act aims to regulate the surrogacy services in India by providing eligibility criteria for intending parents, intending woman and surrogate mother. To safeguard the interest of surrogate mothers, it provides for insurance coverage and necessary medical expenses in addition to prohibiting commercial surrogacy. It also regulates and supervises surrogacy procedures, registration of surrogacy clinics and legal status of a surrogate child. After the Act, India witnessed increase in the people travelling abroad for surrogacy. This article examines the challenges, with a particular focus on the Surrogacy Act and its impact on cross-border surrogacy arrangements. It analyses the motivations behind transnational surrogacy, the legal frameworks governing it in India, the ethical considerations involved and the potential consequences of the Indian legislation on international reproductive tourism. It argues that legal loopholes may inadvertently push the practice underground, underscoring the need for a comprehensive and globally harmonized approach to surrogacy.