Born Across Borders: The Tangled Truth of Surrogacy

“However, motherhood comes to you, it’s a miracle”

-Valerie Harper, American Actress

Dr. Pinky Anand

Long before legal contracts and IVF clinics, Indian mythology offered its own surrogacy tales. From Lord Krishna, born to Devaki but raised by Yashoda, to Karna, delivered by Kunti yet abandoned and raised by another, our epics have always stretched the boundaries of motherhood beyond biology and birth. These stories remind us: motherhood is not always about who gives life—but who gives love, shelter, and identity.

In today’s world, that same truth resurfaces in sterile hospital rooms and cross-border courtrooms. Not every child is born into the arms of the mother who carries them. Sometimes, their journey begins in a hospital room far from their genetic origins, entangled in contracts, citizenship clauses, and questions the law isn’t always ready to answer.

In 2008, a baby girl named Manji was born in Gujarat—not to the mother who birthed her, nor the one who planned to raise her. Born to an Indian surrogate, genetically unrelated to her, and claimed by a Japanese father, Manji’s arrival stirred not just hearts, but headlines. Her intended mother had filed for divorce before she was born, leaving her legal identity suspended in limbo. Was Manji an Indian citizen? Who was her mother in the eyes of the law? Her story unravelled a legal and emotional puzzle at the dawn of India’s cross-border surrogacy era—a tale that gripped both lawmakers and families across continents.

Surrogacy has offered hope where nature faltered—welcoming children into the arms of infertile couples, single parents, and LGBTQIA+ families. Yet, behind its miracles lie tangled threads of law, ethics, and identity.

The echoes of surrogate children’s dilemma resurfaced more starkly during the 2022 Russian invasion of Ukraine, where newborns—carried by local surrogates for foreign parents—were left behind in war-torn hospitals. Ukraine, once a haven for commercial surrogacy due to its liberal laws, became a battleground not only of politics but of parenthood. The crisis highlighted a deeper question: when borders break and war disrupts life itself, who protects the child?

What is Surrogacy, Really?

At its core, surrogacy is an arrangement where a woman agrees to carry a child for someone else. As defined in Black’s Law Dictionary: “Surrogacy is an agreement where a woman agrees to be artificially inseminated to carry with the semen of another woman’s husband”. Surrogacy is typically classified into two types: altruistic and commercial.

Evolution of Surrogacy Laws in India

India’s surrogacy journey has been anything but linear. Allowed in 2002, surrogacy quickly evolved into a booming transnational industry, offering hope to aspiring parents worldwide but also sparking concerns of exploitation, particularly among economically vulnerable women. What began as a solution for infertility soon drew criticism for fostering “womb-renting”, a term that underscored the commodification of reproduction in the absence of a robust legal framework.

To bring order to the chaos, the Indian Council of Medical Research (“ICMR”) issued the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India. These guidelines permitted surrogate compensation (Clause 3.5.4) while paradoxically prohibiting Assisted Reproductive Technologies (“ART”) clinics from advertising or facilitating commercial surrogacy (Clause 3.10.4). While aiming to curb exploitation, they opened the floodgates to fertility tourism. Meanwhile, Clause 3.5.9 prohibited sex selection and sex-based abortions—a much-needed safeguard amid rising concerns about female foeticide.

In Baby Manji Yamada v. Union of India, the Supreme Court of India recognised surrogacy as a “well-known method of reproduction,” validated the rights of single men and queer couples to commission surrogacy—an extraordinary stance at a time when homosexuality remained criminalised—and issued an identity certificate enabling Baby Manji’s travel to Japan.

Around the same time, the Yaros-Hakak v. Attorney General  case in Israel further exposed legal contradictions when a same-sex couple seeking citizenship for their surrogate-born children in Mumbai was stalled by procedural and legal hurdles in their home country. Legislative intervention ultimately resolved the issue, highlighting the transnational complexity of reproductive rights.

In response to such cases, the 228th Report of the Law Commission of India recommended banning commercial surrogacy while ensuring protections for surrogate mothers, including life insurance and financial support for the child in case of abandonment. The report also advocated that all terminations of pregnancy be governed by the Medical Termination of Pregnancy, Act 1971 (“MTP Act, 1971”).

To address these gaps, the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”) was enacted alongside the Surrogacy (Regulation) Act, 2021 (“Surrogacy Act”). This statute regulates ART clinics and banks across the country, laying down standards for their registration, operation, and ethical practices. It prohibits sex selection, ensures the confidentiality of donors and commissioning parents, and creates a National ART and Surrogacy Board for oversight. Importaqantly, it aims to eliminate unethical practices by mandating consent protocols, genetic counselling, and clear documentation at every stage of ART procedures.

The Surrogacy Act now stands as the principal legislation governing surrogacy in India. It permits only altruistic surrogacy for heterosexual married couples and certain single women (widows or divorcees aged 35–45), provided they face proven infertility. Commercial surrogacy is banned under Sections 2(r), 2(s), and 38, and penalized under Section 39. The Act also mandates that surrogates must be close relatives, already mothers themselves, and within the age range of 25–35. Backed by Section 50, the Surrogacy (Regulation) Rules, 2022 introduced mandatory counselling for both intending parents and surrogate mothers—an attempt to ensure informed consent and safeguard emotional well-being.

India’s surrogacy law, despite aiming to regulate and protect, remains riddled with exclusions and inconsistencies. It permits only heterosexual, married Indian couples to commission surrogacy, effectively excluding queer individuals, single men, live-in couples, and unmarried women.

The emphasis on altruism and the requirement that surrogates be “close relatives” reflect a paternalistic approach that limits women’s autonomy. The ban on compensation, meant to prevent exploitation, assumes surrogate mothers cannot make informed decisions about their own bodies.

The law also suffers from poor coordination. Overlaps between the Surrogacy Act and the ART (Regulation) Act create procedural delays and administrative confusion.

This framework reinforces a narrow, heteronormative view of family and raises key questions: Who defines family? Whose reproductive rights are valid?

Notably, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court recognised reproductive choice as part of personal liberty under Article 21. The current law risks undermining that right by restricting access to surrogacy based on marital status, gender, and sexuality.

Surrogacy in Ukraine

Ukraine legalized surrogacy in 2000 and quickly emerged as one of the most surrogacy-friendly nations in Europe. Clause 123 of Ukraine’s Family Code allows married couples to access surrogacy—including gestational and other forms—without regulatory approval, relying instead on a written agreement between the parties.

Ukraine’s first recorded surrogacy dates back to 1995, when a woman carried her own grandchild due to her daughter’s infertility. From the outset, however, surrogacy evolved without legally embedding protections for the surrogate. Today, surrogates rely largely on civil contracts for recourse—with no standalone statute to safeguard their rights.

Efforts to introduce such protections have faltered. A draft law prepared by MP Volodymyr Kapliienko sought to formalise the rights of surrogates and offer them fair honorariums, but Ukraine’s Ministry of Health rejected the bill, fearing it would disrupt the commercial surrogacy industry. As a result, surrogates remain materially essential—but legally invisible.

Ukraine’s surrogacy industry, already fragile, collapsed under the weight of war. As India, Nepal, and Thailand banned commercial surrogacy between 2015–2019, Ukraine emerged as a global hub—until Russia’s 2022 invasion exposed the instability beneath.

Surrogate mothers were trapped between conflict and contract. Many couldn’t flee to safer countries like Poland without breaching agreements. Newborns were stranded; their legal parentage unclear. With no legal protection for the women involved, surrogacy became yet another casualty.

Fears of gamete trafficking during evacuations triggered calls for tighter oversight. But the crisis laid bare a deeper issue: when surrogacy hinges only on contract, without safeguarding those who carry life, it breaks down under pressure.

War or peace, surrogacy is not just about reproduction—it’s about rights, and who gets to claim them.

Humanising Surrogacy: Lessons from Global Models

Canada’s surrogacy framework stands out as a progressive and ethically grounded model—balancing reproductive autonomy with strong safeguards. With a 400% surge in surrogacy over the past decade, Canada permits only altruistic arrangements, ensuring reimbursements for genuine expenses like healthcare, legal fees, income loss, and postnatal care. A mandatory pre-conception agreement ensures clarity on consent and enforceable parental rights. In doing so, Canada protects surrogate mothers from exploitation without commodifying them.

In 2021–2022, 213 children were born from international surrogacy arrangements in Canada, compared to 100 across Australia and New Zealand. Australia’s approach acknowledges the power imbalance in typical surrogacy contracts that often exploit women under the guise of altruism. In response, the Australian government outlined core human rights for surrogates—bodily autonomy, informed consent, regular health checkups, and access to counselling. These safeguards reflect a growing recognition of surrogate mothers as rights-bearing individuals, not merely vessels for reproduction.

South Africa takes an equal-protection approach that aims to balance the interests of both surrogate and intended parents. Under the Children’s Act 38 of 2005, a surrogate mother may terminate the agreement within 60 days of birth by notifying the court. If exercised, she assumes full parental responsibility for the child. This legal right reinforces agency and safeguards against coercion, marking a unique middle ground in global surrogacy regulation.

Conclusion: Surrogacy, Reimagined

Surrogacy remains a complex terrain—emotionally charged, socially sensitive, and legally fragmented. Yet, it holds profound transformative potential. It redefines kinship, challenges traditional notions of motherhood, and becomes a beacon of hope for those for whom biology falls short. Cases like Baby Manji and Johnson v. Calvert lay bare the difficulties in regulating cross-border arrangements, but they also reaffirm the core truth: surrogacy is as much about rights and recognition as it is about reproduction.

Drawing on global best practices, India’s surrogacy regime can evolve in the following key ways: Firstly, the eligibility criteria must be expanded. Limiting surrogacy to heterosexual, married Indian couples excludes LGBTQIA+ individuals, single women, and live-in partners -reinforcing outdated family norms. A truly inclusive law must reflect the realities of diverse Indian households. Secondly, India should mandate pre-conception agreements drafted and reviewed by certified fertility law practitioners. These contracts would promote informed consent, protect all parties involved, and create space for a formal fertility law practice to grow.

Thirdly, the Surrogacy Act must include guaranteed access to pre and postnatal care for surrogate mothers. Drawing inspiration from Canada and Australia, India should institutionalise medical, emotional, and psychological support—ensuring surrogates are not left behind once the baby is born.

Ultimately, India must move beyond viewing surrogacy through a lens of moral suspicion and begin to recognise it as a legitimate, life-affirming reproductive choice—one that warrants legal clarity, empathetic regulation, and unwavering respect for all parties involved.

Because when anchored in rights and dignity, surrogacy is not merely a means to build families—it becomes a testament to autonomy, compassion, and the evolving meaning of parenthood.

(The Author is a former ASG and a Senior Advocate at the Supreme Court of India)