ABSTRACT
With the growth of commercial surrogacy, the market of reproduction is now a global industry that includes fertility clinics, agencies and contracts. For individuals and couples, surrogacy is a way to have more reproductive options, but there are concerns that those practices treat the bodies plus reproductive functions of women as items for trade. If a woman is pregnant, the situation is usually a biological and social function. In current market structures, however, a woman provides reproductive work in exchange for money.
This article looks at it as a form of reproductive work. It is an analysis of legal issues that relate to the ability of a person to make their own choices, the unfair use of people for profit and the process of making things commercial. As a further step, the article describes the laws in India but also recent changes in court decisions about surrogacy.
INTRODUCTION
Due to new reproductive technology, surrogacy is now a global industry that generates many billions of dollars. With surrogacy, a woman agrees that she will carry and give birth to a child for another person or a couple. On one side, people who support this practice say it is a way to use reproductive freedom. On the other side, individuals who are critical say it shows that the reproductive abilities of women are increasingly part of a commercial system.
And the legal discussion about surrogacy is not only about family law. There are larger questions about work, the power to make individual decisions and the fact that wealth is not equal among people. When a woman is pregnant, she must give a large amount of physical as well as emotional effort. This reproductive work is not recognised in legal or economic systems.
REPRODUCTIVE LABOUR AND THE SURROGACY MARKET
Reproductive labour is a term that describes the bodily and psychological tasks that people perform during pregnancy, birth and the care of others. As a common practice, society often views those actions as inherent characteristics of female identity instead of tasks that have financial value.
But commercial surrogacy changes how people perceive the differences. In those agreements, pregnancy is the primary focus of a legal document that links the parties who want a child, healthcare workers and businesses that manage fertility. If individuals oppose this practice, they claim that the process turns the act of having children into a commodity that people buy and sell.
Due to the legal case of In re Baby M, the legal issues that relate to paid surrogacy are widely known. When a surrogate mother named Mary Beth Whitehead did not want to give up the infant after the birth, a legal disagreement about who should raise the child began. To resolve the issue, the court decided that the agreement was not legally binding. It expressed worry that the process treated the role of a parent and the existence of children as items for trade.
And a different legal outcome occurred during the case of Johnson v Calvert. In this situation, the court decided that the individuals who requested the surrogacy are the lawful parents of an infant born through a gestational arrangement. The ruling is an example of the rising approval of birth through legal agreements. It shows that financial interactions are more common when people create families.
THE INDIAN POSITION
Before the government regulated the practice, India was a large global center where people paid for surrogacy. Low prices and a lack of rules attracted parents from other countries and people called this activity reproductive tourism.
It became clear that the industry lacked legal rules during the case of Baby Manji Yamada v Union of India. In this situation, a surrogate in India gave birth to a child for Japanese parents who separated before the birth. There were many uncertainties about who the parents were, which country the child belonged to plus how international surrogacy agreements worked.
And similar problems occurred in Jan Balaz v Anand Municipality, when children born to German parents through surrogacy faced disagreements about their citizenship – those cases showed that there was no organized system of rules for surrogacy involving payment.
To address this Parliament passed the Surrogacy Regulation Act – this law stops individuals from paying for surrogacy and only allows surrogacy when it is for selfless reasons under certain rules. By using this law, the government tries to stop people from taking advantage of women who have little money and aims to end the trade of fertility services.
RECENT DEVELOPMENTS IN INDIA
In the most recent years, judges are examining many rules that the law creates. The Supreme Court is allowing people to use eggs from donors when they have specific health issues like MRKH Syndrome. Because of this decision, the government is changing the Surrogacy Rules. Those rules now permit a person in a couple to use a donor gamete if a doctor certifies that they have a medical condition.
By reviewing the law, the Supreme Court is also looking at the rules for age and who is eligible. In 2025 the judges are deciding that age limits are not able to stop couples who are already in the process of surrogacy before the law is active. To explain this the Court is saying that the goal of the law is to stop people from being treated unfairly. It is not the goal of the law to stop individuals from being parents for no reason.
The Court is currently looking at rules that prevent couples who have a child from using surrogacy. If those rules exist, they are creating questions about the right of a person to make their own choices about having children under Article 21 of the Constitution.
AUTONOMY, EXPLOITATION AND THE LIMITS OF LAW
In legal discussions, people disagree on if surrogacy is an expression of personal freedom or a form of unfair treatment. Supporters state that women are free if they sign agreements to use their bodies to carry children for others. From this view it is possible that laws against payment interfere with the way a person controls their own body.
But people who disagree argue that the amount of money a person has often determines their choices about children. Many women who carry children for others are in positions where they have very little money. There is a concern that those women agree to the process because they need funds to survive, rather than because they want to participate. As a result when pregnancy is part of a market, it is possible that the work of reproduction becomes a product that is bought and sold.
To address this the law must find a way to keep women safe from unfair treatment. At the same time it is important that the law does not take away the power of women to make their own decisions.
CONCLUSION
It is clear that surrogacy is a situation where law, economics and rights for reproduction meet in a complicated way. While the practice of paying for surrogacy creates more chances for individuals to have children, it also creates serious worries – those worries are about if reproductive work is being treated like a commercial item. On this topic important legal cases from India and other countries show that it is hard to allow people to make their own contracts while also respecting their value as human beings.
As the rules for surrogacy in India change, the main problem is still if the government can regulate reproductive work as a business. If it is a business, it is difficult to prevent pregnancy and motherhood from being treated as simple objects of trade.
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WRITTEN BY: SAMANA
