Ethical and Legal Challenges in Surrogacy: Comparative Study of India and USA

This paper explores the development of the legal framework governing surrogacy in India, particularly through the lens of the Surrogacy Regulation Act, 2021. In contrast to the state- centric surrogacy regulations present in the USA. This paper examines the reasons for the transition from being a prominent global commercial surrogacy destination to implementing stringent regulations that facilitate the altruistic model of surrogacy, aimed at preventing the exploitation of women by intermediaries and agencies while upholding the traditional values of the Indian family. The new legislation bans commercial surrogacy, as well as services for LGBTQ individuals, single parents, and foreign nationals, while considering the autonomy of reproductive choices. In the USA, there are no overarching federal laws concerning surrogacy, leading to the dominance of state law. The primary drawback of surrogacy in the United States is its high cost, which can range from $49,000 to $300,000 or even more. This expense is beyond the reach of a significant portion of the population. This paper discusses the definition of surrogacy, various types of surrogacy arrangements, the laws governing these two nations, the enforceability of surrogacy contracts, parental rights, and the treatment of the surrogate mother. Additionally, it concludes with a comparison of the laws in the two countries, focusing on the legal framework that protects the dignity of the mother and preserves the reproductive rights of families.