The Shadow Market of Motherhood: The Surrogacy (Regulation) Act, 2021 and the Unseen Growth of Covert Practices

This paper critically examines the Surrogacy (Regulation) Act (2021) and its impact on surrogacy practices in India, particularly the rise of covert surrogacy arrangements following the prohibition of commercial surrogacy. By analyzing the historical context of surrogacy in India and the legal framework of the SRA 2021, this article aims to explore how the Act's restrictive measures have led to unintended detrimental consequences. While current legislation seeks to protect surrogate mothers from exploitation through commercial surrogacy agreements, this has uncalculatedly driven the industry underground, causing more harm than good. Additionally, this paper examines cross-border legal disputes, shedding light on issues of conflicting parentage and citizenship laws, which have rendered children born via surrogacy in a state of legal uncertainty. Indicating that a more equitable and rights-oriented approach to surrogacy regulation is required for better management of this practice. Instead of an outright ban, a regulated system that ensures ethical oversight, safeguards surrogate rights, and enforces contractual protections would be more effective. By offering policy recommendations to address the enforcement gaps and legal ambiguities created by the SRA 2021, this paper advocates for a framework that upholds both reproductive autonomy and ethical protections in surrogacy arrangements.