A CRITICAL APPRAISAL OF THE JUDICIAL RESPONSE TO THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021 AND SURROGACY LAWS IN INDIA

Abstract

The trajectory of assisted reproduction law in India runs from an interpretive vacuum, filled ad hoc by constitutional courts confronting question of citizenship, custody and contractual enforceability, to a dense statutory regime under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 that has itself become the object of sustained litigation. This paper traces that trajectory, examines the eligibility, consent and gamete-use architecture of the twin statute, and undertakes a critical appraisal of the judicial response since the Acts came into force. It argues that constitutional courts, drawing on the post-Puttaswamy privacy jurisprudence, have progressively read down the more paternalistic feature of the surrogacy regime, including the restriction on donor gamete and the retrospective application of rigid age bar, while a substantial constitutional challenge to the prohibition of commercial surrogacy, the exclusion of unmarried and same-sex intending parent, and the single-child bar remains pending before the Supreme Court. The paper contends that this incremental, case-by-case judicial correction, though doctrinally coherent, has produced an uneven and unpredictable regulatory landscape, and it proposes legislative and interpretive reform to reconcile the state's legitimate interest in preventing the exploitation of women's reproductive labour with the constitutionally guaranteed right to reproductive autonomy.