Inclusion and Equality: Understanding Disability Rights Legislation in India.


This article delves into the progress, present status, and influence of disability rights legislation in India, highlighting the journey towards inclusivity and equality for people with disabilities (PwDs). With a population of over 26.8 million PwDs, India has made notable legislative advancements, particularly through the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act signifies a transition from a welfare-based to a rights-based approach, broadening the definition of disability, increasing reservations in education and employment, focusing on accessibility, and imposing penalties for discrimination. Despite these legislative strides, challenges in implementation remain. Insufficient awareness and sensitization among stakeholders, limited infrastructure and digital accessibility, and systemic barriers hinder the effectiveness of reservation policies. Additionally, the lack of accurate data collection and monitoring mechanisms hampers policy improvements. Government initiatives like the Accessible India Campaign and the National Action Plan for Skill Development, along with efforts by civil society in advocacy, legal support, and community-based rehabilitation, are crucial in addressing these challenges. Technology, particularly assistive and accessible digital technologies, plays a key role in enhancing the independence and participation of PwDs.

The article presents successful implementation case studies such as Kerala’s Barrier-Free Tourism Initiative, Delhi University’s Equal Opportunity Cell, and Tata Consultancy Services’ employability programs, demonstrating the potential for inclusive development. Looking ahead, the focus should be on strengthening the enforcement of the RPWD Act, improving accessibility, promoting inclusive education, expanding employment opportunities, fostering positive societal attitudes, and leveraging technology. Achieving true inclusion and equality requires collaborative efforts from the government, civil society, and the private sector, ensuring that all individuals, regardless of their abilities, can fully and equally participate in society.


Disability rights are fundamental human rights. Ensuring that people with disabilities (PwDs) have equal opportunities and access to various aspects of society is crucial for fostering an inclusive and equitable community. India, home to over 26.8 million people with disabilities according to the 2011 Census, has taken significant legislative steps to safeguard these rights. This article delves into the evolution, current state, and impact of disability rights legislation in India, exploring the challenges and future directions for fostering true inclusion and equality.

Evolution of the Concept of Disability

The journey towards disability rights in India has been gradual, marked by significant milestones. Historically, disability was viewed through a lens of charity and welfare, rather than rights and empowerment. This perspective began to shift in the latter half of the 20th century, influenced by global movements and changing societal attitudes.

  • Early Initiatives

In 1986, the Ministry of Welfare formulated the National Policy for Persons with Disabilities, which aimed to integrate PwDs into mainstream society. However, it was not until the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), that a comprehensive legislative framework was established. The PWD Act was a significant step forward, focusing on education, employment, and the creation of a barrier-free environment for PwDs.

  • International Influence and the UNCRPD

India’s commitment to disability rights was further strengthened by its ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007. The UNCRPD played a crucial role in shaping India’s approach to disability, emphasizing dignity, autonomy, and non-discrimination.

  • The Rights of Persons with Disabilities Act, 2016

The most significant legislative advancement in recent times is the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act replaced the PWD Act of 1995, aligning India’s laws more closely with the principles of the UNCRPD. The RPWD Act marked a paradigm shift from a welfare-based approach to a rights-based approach.

Key Provisions

Broadened Definition of Disability: The RPWD Act expanded the categories of disabilities from Sec. 7 to 21, including conditions like autism, intellectual disability, and multiple disabilities. This inclusive definition ensures that a wider range of disabilities is recognized and protected under the law.

Reservation in Education and Employment: The Act mandates a 4% reservation in government jobs and a 5% reservation in higher education institutions for PwDs, up from the previous 3%. This provision aims to enhance educational and employment opportunities for PwDs.

Accessibility: The Act emphasizes the creation of a barrier-free environment. It mandates the formulation of accessibility standards for physical infrastructure, transportation, information, and communication technology.

Guardianship and Legal Capacity: The RPWD Act recognizes the legal capacity of PwDs and provides for the appointment of limited guardians only when necessary. This provision respects the autonomy and decision-making abilities of PwDs.

Penalties for Discrimination: The Act introduces penalties for discrimination against PwDs, ensuring accountability and legal recourse for violations.

Implementation Challenges

While the RPWD Act is comprehensive, its implementation faces several challenges:

Awareness and Sensitization: A significant gap exists in awareness and understanding of the provisions of the RPWD Act among stakeholders, including government officials, employers, educators, and the general public. Sensitization programs are essential to bridge this gap and foster a more inclusive society.

Infrastructure and Accessibility: Despite the mandates, physical and digital accessibility remains a major challenge. Many public buildings, transportation systems, and digital platforms are not fully accessible, limiting the participation of PwDs in various aspects of life.

Education and Employment: The implementation of reservation policies in education and employment often falls short due to systemic barriers, lack of adequate support systems, and societal attitudes. Ensuring that educational institutions and workplaces are equipped to accommodate PwDs is crucial.

Data and Monitoring: Accurate data collection and monitoring mechanisms are essential to assess the effectiveness of the RPWD Act. Currently, there is a lack of comprehensive data on the implementation and impact of the Act, hindering policy planning and improvement.

Government and Civil Society Initiatives

Both the government and civil society organizations play a crucial role in addressing these challenges and promoting disability rights.

Government Initiatives

  • Accessible India Campaign (Sugamya Bharat Abhiyan):Launched in 2015, this campaign aims to make public spaces, transportation systems, and information technology accessible to PwDs. The campaign focuses on creating a barrier-free environment through infrastructure development and awareness programs.
  • National Action Plan for Skill Development:This plan focuses on enhancing the skills and employability of PwDs through vocational training programs, aiming to increase their participation in the workforce.
  • Inclusion in Education Policies: Various policies and schemes, such as the Sarva Shiksha Abhiyan (SSA) and the Integrated Education for Disabled Children (IEDC) scheme, aim to promote inclusive education and provide support services for children with disabilities.

Civil Society Initiatives

  • Advocacy and Awareness:Numerous non-governmental organizations (NGOs) and advocacy groups work towards raising awareness about disability rights, advocating for policy changes, and providing support services to PwDs.
  • Legal Support and Counseling: Organizations like the National Centre for Promotion of Employment for Disabled People (NCPEDP) provide legal support and counseling to PwDs, helping them navigate the legal system and fight for their rights.
  • Community-Based Rehabilitation (CBR):CBR programs, run by NGOs and community organizations, focus on empowering PwDs at the grassroots level, providing healthcare, education, and livelihood opportunities.

The Role of Technology

Technology plays a pivotal role in advancing disability rights and inclusion. Assistive technologies, such as screen readers, hearing aids, and mobility devices, enhance the independence and participation of PwDs. The proliferation of digital platforms and online services also offers new opportunities for education, employment, and social interaction.

However, ensuring digital accessibility remains a challenge. Websites, mobile applications, and digital content need to be designed with accessibility in mind, adhering to standards like the Web Content Accessibility Guidelines (WCAG). The government and private sector must invest in accessible technology to bridge the digital divide.

Case Studies

Examining real-life examples of successful implementation of disability rights can provide valuable insights and inspiration.

  • Case Study 1: Kerala’s Barrier-Free Tourism Initiative

Kerala’s initiative to make tourist destinations accessible to PwDs is a commendable example of inclusive development. The state government, in collaboration with various stakeholders, has worked to make popular tourist spots, hotels, and transportation systems accessible. This initiative not only promotes tourism but also highlights the potential of inclusive infrastructure to boost economic development.

  • Case Study 2: Inclusive Education at Delhi University

Delhi University’s Equal Opportunity Cell (EOC) has been instrumental in promoting inclusive education. The EOC provides various support services, including assistive devices, accessible study materials, and special accommodation during exams. These efforts have significantly improved the academic experience and success rates of students with disabilities.

  • Case Study 3: Employability Initiatives by Tata Consultancy Services (TCS)

TCS has implemented various initiatives to enhance the employability of PwDs, including skill development programs, accessible workplace infrastructure, and sensitization workshops for employees. These efforts have not only increased the number of PwDs in their workforce but also fostered a more inclusive corporate culture.

Future Directions

While significant progress has been made, there is still much to be done to achieve true inclusion and equality for PwDs in India. Future efforts should focus on:

  • Strengthening Implementation and Enforcement: Robust mechanisms for monitoring and enforcing the provisions of the RPWD Act are crucial. This includes regular audits, penalties for non-compliance, and transparent reporting.
  • Enhancing Accessibility: Continued efforts to improve physical and digital accessibility are essential. This includes updating infrastructure, promoting universal design principles, and ensuring that new developments are accessible from the outset.
  • Promoting Inclusive Education: Inclusive education should be a priority at all levels, from primary to higher education. This requires adequate training for educators, accessible learning materials, and support services for students with disabilities.
  • Expanding Employment Opportunities: Beyond reservation policies, there is a need for inclusive hiring practices, workplace accommodations, and support for self-employment and entrepreneurship among PwDs.
  • Fostering Societal Attitudes and Awareness: Changing societal attitudes towards disability is fundamental. Public awareness campaigns, community engagement, and education can help reduce stigma and promote a culture of inclusion.
  • Leveraging Technology: Investment in accessible technology and innovation can significantly enhance the independence and participation of PwDs. This includes both assistive technologies and ensuring that mainstream technologies are accessible.


Inclusion and equality for people with disabilities in India are not just legal mandates but moral imperatives. The legislative framework, particularly the RPWD Act, provides a strong foundation for safeguarding the rights of PwDs. However, the journey towards true inclusion requires concerted efforts from the government, civil society, and the private sector. By addressing implementation challenges, promoting awareness, and leveraging technology, India can move closer to a society where all individuals, regardless of their abilities, can participate fully and equally.

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Written By- Shramana Sengupta



This article provides a critical analysis of the intersection between the reproductive rights of a woman and two key pieces of the legislation, i.e., the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology Act, 2021. This article, by thorough analysis of the legislative framework of both the acts, seeks to evaluate the impact on the reproductive autonomy of the woman, address the ethical concerns related to surrogacy and assisted reproductive technologies, current societal perspectives, and identify socio-legal challenges in implementing these regulations. These laws aspire to shield the rights and interests of all the parties involved in the practices, inclusive of the intended parents, the surrogate mothers, and the children born through such procedures. However, there is a requirement to address the complex ethical considerations and practical challenges in the implementation of these regulations. By highlighting such challenges, this article aspires to inform the stakeholders about the practical implications of these regulations and pave the way for discussions on the plausible solutions. Through critical analysis, this article focuses on contributing to the discourse on reproductive rights and assist in shaping future legislative efforts in this domain. The Surrogacy (Regulation) Act,2021 and the Assisted Reproductive Technology Act, 2021, represent notable watershed in the legal regulation of the surrogacy and the ART procedures in India.

Keywords – Reproductive Rights, Surrogacy, Assisted Reproductive Technology, Legislation, Women’s Autonomy, Ethical Consideration, Societal Perspective, Socio-Legal Challenges. 

The Surrogacy (Regulation) Bill[1], first introduced in the Lok Sabha on 15th of July, 2019, was sent to a select committee and après a through revision of the Bill, the report was proposed before the standing committee on the 5th of February, 2020. Later, during the year 2021, winter season of the Parliament, both the Houses of the Parliament passed the bill which was duly acknowledged and signed by the President and enforced in January, 2022. Surrogacy, in the Surrogacy (Regulation) Act,2021[2] is defined as a practice where a woman births a child for a couple who have been medically certified to be an infertile couple and who intend to become parents, with an intention to hand it over to such parents after the birth of the child. The Surrogacy (Regulation) Act,2021, lays the foundation for the regulation of surrogacy in India and sets up the metrics of competence for the intending parents and surrogate mothers, silhouetting the process for acquiring legal identification of surrogacy agreements as well as mandating the establishment of surrogacy boards to administer the application of the law.

The Assisted Reproductive Technology Act, introduced in the Lok Sabha in September, 2020, was sent to a standing committee for revision. Later, along with the Surrogacy Act, it was passed in both the Houses of the Parliament, during the winter season of the Parliament in December,2021 and enforced in January, 2022. The Assisted Reproductive Technology, in the Assisted Reproductive Technology Act, 2021, is defined as all techniques used to attain a pregnancy by handling the sperm or egg cells outside the human body and transferring the embryo into the reproductive tract of the woman, inclusive of, sperm donation, IVF (In-Vitro-Fertilisation), where the sperm is fertilised in a lab and the child to be born is biologically not related to the surrogate. The Assisted Reproductive Technology Act, 2021, governs the practice of the assisted reproductive technologies in India and sets norms for the functioning of fertility clinics and ART procedures, inclusive of the requirements for informed consent, screening of the gamete donors, and the storage and disposal of gametes and embryos. The ART Act also established a national registry for ART clinics and mandated the formation of a national advisory board to surveil assent with the law.

Legislative Frameworks
The Surrogacy (Regulation) Act,2021 bestows various rights and protective shields on the surrogate mother as well as the child born through the process of surrogacy. According to the Surrogacy (Regulation) Act,2021, a couple should obtain certificates of competence and quiddity to possess a child. The couple is determined as ‘eligible’ if they have been espoused for five years, the wife aged between 25-50 and the husband aged between 26-55 years. The couple must not possess any living child, exception being possessing a child with special needs. The couple can obtain an ‘essential’ certificate if proven infertile of either partner certified by a District Medical Board, and an order of lineage and custodianship of the surrogate child, passed by a Court of the Magistrate. They must also possess an insurance indemnification for 16 months for the surrogate mother, securing any puerperium intricacies. A surrogate mother must be a close relative of the couple, aged between 25-35 years and a married woman with a child of her own. The surrogate mother must also possess a certificate of Medical and Psychological fitness for surrogacy.

Surrogacy is authorized only for the altruistic purposes or for the couples who have proven infertility or diseases and not for the commercial purposes inclusive of sale, prostitution, or any other form of exploitation. In legislative debates, several members of the parliament illuminated the requirement to introduce the proposed regulations in twain with the Section 377 as well as the Transgender Persons(Protection of Rights) Bill, whereas, some members of the parliament accentuated on the fact that one of the committees endorsed allowing access for single women and live-in couples, but the legislation only partly addressed this concern by allowing the ever-married single women and not others inclusive of single men, same-sex couples or unmarried couples.[3] Section 3 of the Surrogacy (Regulation) Act,2021 imposes strict regulations on the surrogacy clinics and practitioners. It prohibits the unregistered clinics from conducting the procedure of surrogacy and bans any form of commercial surrogacy. This section mandates that only qualified personnels can be employed, and surrogacy procedures must be performed only at the registered clinics. This section prohibits Advertising inducing surrogacy or promoting commercial surrogacy. For the abortion during the surrogacy, a written consent from the surrogate and authorization from the appropriate authority is required. This section provides that the storage of embryos or gametes for surrogacy is prohibited, except for the legal purposes like IVF. Section 4 of the Surrogacy (Regulation) Act,2021, prohibits the commercial surrogacy and allows only altruistic surrogacy for the intending couples who cannot conceive a child due to either of the partners being infertile. Section 5 of the Surrogacy (Regulation) Act,2021, prohibits the conduction of the procedure of surrogacy and states that no person shall encourage to conduct any surrogacy procedure on a woman. Section 6 of the Surrogacy (Regulation) Act,2021, states that a no surrogacy procedure is to be conducted without the proper knowledge of the surrogate about the procedure and consequences and a written informed consent of the surrogate mother. Section 11 of the Surrogacy (Regulation) Act,2021, prescribes that the establishment of surrogacy clinics require registration under the Surrogacy (Regulation) Act,2021. The Applications must be submitted to the appropriate authority along with the prescribed fees and the existing clinics conducting surrogacy must apply for the registration within 60 days of the appointment of the authority or cease to operate after six months from the commencement of the act. It states that the registration is contingent upon the clinic meeting prescribed standards for facilities, equipment, manpower, infrastructure, and diagnostic efficiency. Section 38 of the Surrogacy (Regulation) Act,2021 prohibits the commercial surrogacy, exploitation of surrogate mothers and children born through the procedures of surrogacy. Section 39 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for the contravention of the provisions of the Act as imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. Section 40 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for not adhering to the altruistic surrogacy as imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years with fine which may extend to ten lakh rupees.[4]
The Surrogacy (Regulation) Act,2021, has amassed venerable critique for its cliquish demeanour towards the LGBTQ+ Community and single individuals seeking for parenthood through surrogacy. The Surrogacy (Regulation) Act,2021 authorizes only heterosexual married couples recognized under the Indian Law to engage in the procedure of surrogacy, effectively prohibiting the same-sex and non-binary couples, as well as single fathers, from accessing these reproductive procedures. This act overtly stipulates that surrogacy procedures are reserved for the heterosexual married couples, reinforcing traditional norms, and excluding diverse family structures. This exclusion is particularly glaring considering that single parents, who account for the 20%[5] of the surrogacy users, are also denied access under this Act. Such restrictive provisions reinforce societal prejudice and perpetuate discrimination against LGBTQ+ individuals and single parents seeking to build families through surrogacy. The stance of the administration on the surrogacy for LGBTQ+ individuals have been marred by overt homophobia. Former Minister of External Affairs of India, Sushma Swaraj, has been vocal in her hostility to surrogacy for homosexuals, adducing culture norms and “Indian Ethos”[6]. Such statements reflect the entrenched societal biases and illuminates the challenges faced by the LGBTQ+ individuals and single parents.[7]
According to the Assisted Reproductive Technology Act, 2021, every clinic and bank of ART must be registered with the National Registry of Banks and Clinic of India which shall conserve a central database with all the requisite details of such institutions. Section 15 of the Assisted Reproductive Technology Act, 2021 mandates the Registration of Assisted Reproductive Technology or Assisted Reproductive Technology Bank. The validity of registration of such clinics and banks is for 5 years and can be renewed for another 5 years which shall be subjected to cancellation or suspension in case of violations of the provisions of the ART Act. Section 17 of the Assisted Reproductive Technology Act, 2021 prescribes the validity and renewal of the registration. A registered bank of ART can screen, collect as well as store the semen from men and eggs from women both aged between 21 to 55 and 23 to 35 respectively. Section 28 of the Assisted Reproductive Technology Act, 2021 states the procedures as well as the standards of storage and handling of human gametes and embryos. According to the provisions of this act, the female donors need to be married with at least one child of their own. A woman, in her entire lifetime, can only donate up to 7 eggs. Section 22 of the Assisted Reproductive Technology Act, 2021 states the provision of the Written Informed Consent. The written consent of both the couples as well as the donor is required for the commencement of the procedures of the ART and the couple seeking the procedure of ART must provide insurance indemnification for the female donor in case of loss, damage, or death of the donor. The donor does not retain any lineage or custodianship over the child to be born and such child is to be deemed as the biological child of the couple. The clinic and banks conducting the procedure of ART are prohibited from advertising or offering the sex-selective ART. Section 32 of the Assisted Reproductive Technology Act, 2021 prescribes the punishment for the sex-selective assisted reproductive technology. Section 26 of the Assisted Reproductive Technology Act, 2021, prohibits the pre-natal diagnostic to determine the sex of the child as well as prescription of anything that shall ensure the probability of an embryo to be of a particular sex. Involvement of such clinics and banks in such offenses is punishable with imprisonment of a term not less than 5 years which may extend to 10 years and/or a fine not less than Rs. 10 Lakhs which may amount to Rs. 25 Lakhs.[8] Section 18 of the Assisted Reproductive Technology Act, 2021, states that non-compliance with the rules and regulations of the Act shall result in the Suspension or Cancellation of the registration.[9]
Article 21 of the Constitution of India provides the guarantee to the right to life and personal liberty to all individuals inclusive of the right to live with dignity, which the courts interpreted to encompass various aspects of the reproductive rights, such as the right to access healthcare services and reproductive healthcare. Article 19 of the Constitution of India provides freedom to the intended couples to make informed choices about the reproduction and family planning. Article 15(3) of the Constitution of India enables the state to make special provisions concerning the women and children. Article 39(a) of the Constitution of India directs the state to ensure that citizens, men, and women have equal rights to an adequate means of livelihood, ensuring the protection of the reproductive rights of the women and addressing the gender-based discrimination in the reproductive healthcare.[10]

Ethical Considerations
The ethical realm whirling around the surrogacy as well as the ART are intricate as well as pugnacious, comprehensive of various concerns that decussate with the societal values, medical ethics, and human rights principles. While these technologies offer propitious avenues for individuals and couples struggling with infertility to achieve parenthood, they also raise abstruse ethical questions. One of the foremost ethical considerations is the plausible commercialization of the human body intrinsic in surrogacy procedures. Experts contend that the complicity of financial transactions in surrogacy can lead to the abuse of economically disadvantaged women who may feel coerced to become surrogate mothers for the purpose of mere financial gain. This raises the apprehension about the accord and agency of surrogate mothers, as they steer complex socio-economic factors that may impact their decision-making. Furthermore, the commercialization of surrogacy can eternalize the inequalities and stiffen the conception of the body of the women as commodities that can be bought and sold. This challenges the principles of reproductive accord, which accentuated the rights of the individuals to make informed choices about their reproductive lives without intimidation or insistence. Equilibrating the accord of intended parents with the welfare and accord of surrogate mothers is a central ethical predicament in the regulation of surrogacy.  Additionally, the use of ART procedures such as Preimplantation Genetic Diagnosis (PGD) raises ethical distress regarding the selection of coveted attribute or idiosyncrasy in offsprings. While PGD can help identify the genetic anomalies and prevent the dissemination of inbred diseases, its use for non-medical purposes, such as selecting for gender or specific physical attributes, raises ethical questions about the possibilities for eugenic practices and the protraction of the social inequalities.

Moreover, the welfare of the surrogate mothers and children born through the procedure of ART is a preponderant ethical consideration. Surrogate mothers may confront physical and emotional threat kindred with pregnancy and childbirth, as well as plausible adversities in steering through the complex emotional flux of surrogacy procedures. Cinching the protection of the rights of the surrogate mothers, access to panoramic healthcare, and psychological assistance is essential to sustain ethical standards in surrogacy. Similarly, the welfare of children born through the procedures of ART, inclusive of the issues of individuality, consanguinity, and the right to know one’s own genetic heritage, requires careful considerations. Ethical guidelines accentuate the significance of lucidity, honesty, and respect for the best interests of the child in all the aspects of ART, including the donor conception and surrogacy.

Socio-Legal Challenges
The implementation of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021, faces various socio-legal implications that impede their efficacies. The major challenge is the sparse enforcement mechanism. While legislations exist, enforcement at the ground level can be challenging due to various factors such as lack of resources, capacity, and coordination amongst the regulatory authorities. The issue deteriorates the intended regulatory framework, leaving crevices that may be tyrannized or result in inconsistent application across the country.

Moreover, there is ubiquitous lack of awareness and education about the reproductive rights and responsibilities amongst the general population, healthcare providers, and even legal professionals. This deficit contributes to incomprehension, misapprehension, and non-compliance with the provisions laid out in the Acts. Addressing this gap requires strenuous efforts to propagate scrupulous information, raise awareness about the rights and responsibilities, and promote ethical practices in surrogacy and ART. The dissimilitude in access to healthcare and legal resources present another significant challenge. While the legislation aims to ensure equitable access to reproductive services, socio economic factors, geographic locations, and systematic barriers can hinder access for certain tranche of the population. Marginalized communities, rural populations, and economically destitute individuals may face challenges in accessing quality healthcare services and legal support needed to steer the surrogacy and ART landscape[11].
Furthermore, the evolving nature of the reproductive technologies and shifting social norms necessitate continuous review and adaptation of existing legislation. As new technologies emerge and societal attitudes towards reproduction evolve, gaps in regulation may emerge, requiring timely updates to ensure that the legislation remains relevant and effective. This ongoing process of review and adaptation is essential for safeguarding the reproductive rights of the women, addressing emerging ethical concerns, and maintaining public trust in surrogacy and ART practices. There are instances where the implementation of surrogacy regulations has faced challenges in India, inclusive of the exploitation of surrogate mothers[12] and the commercialization of surrogacy[13], which led to the legislative reforms aimed at the protection of the rights of the surrogate mothers and ensuring ethical practices in surrogacy procedures.
Addressing the socio-legal challenges facing the implementation of surrogacy and ART regulations requires a multi-faceted approach involving improved enforcement mechanisms, enhanced awareness and education efforts, and measures to alleviate disparities in access to healthcare and legal resources. Additionally, ongoing review and adaptation of legislation are crucial to keep pace with elevation in reproductive technologies and evolving societal norms, ultimately safeguarding the reproductive rights, and promoting ethical practices in surrogacy and ART.
It was argued that the ban on the commercial surrogacy showed the centre was inaccessible with the ground realities. Various villages in Gujarat are known for commercial surrogacy. Anand, known for the Amul’s Diary Factory, according to the reports has also attained fame as India’s ‘surrogacy capital’, offering remunerative monetary opportunities for penurious women. A surrogate earns around Rs. 3 to 5 lakhs per pregnancy, reliant on the delegating parents, and the total costs of making a baby is roughly Rs. 10 lakhs. In Mumbai, a surrogate mother is paid around Rs. 12 to 15 lakhs for one surrogacy, of which the surrogate mother earns Rs. 3 to 4.5 lakhs. Such practices have now been abolished with the implementation of these two Acts but still in some parts of the country, such practices are still prevalent for financial gains.[14]

Case Laws

  1. Jan Balaz Vs. Anand Municipality[15]

This case revolves around a German couple who hired a surrogate mother named Marthaben Immanuel Khrishti who gave birth to twins. This couple worked in the US and thus their twins needed an Indian Passport to travel. The two twins did not possess citizenship as its process was litigating in the courts. So, the passport authorities did not grant the passports to the twins and in Germany, there was no law for surrogacy. The Supreme Court of India, did not grant permission to provide them with the passports but granted an exit permit to the children and the German authority allowed them to adopt the children and contest for their rights.

  1. Justice K.S. Puttaswamy Vs. Chandigarh Administration[16]

In this case, the court held that there is a violation of the right to privacy in acquiring and furnishing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district medical board and this fundamental right is needed to protected.

  1. Shweta Janardhan Barve Vs. State of Kerala[17]

    The court in this case, ordered the DIG of Thiruvananthapuram to investigate a proposed surrogate mother and her family to ensure altruistic surrogacy. The court held that The Surrogacy (Regulation) Act, 2021 allows only altruistic surrogacy, where the surrogate mother does not receive any monetary compensation[18].

The analysis of the Surrogacy (Regulation)Act, 2021, and the Assisted Reproductive Technology Act, 2021, reveal the labyrinthine intermesh between the legislative manoeuvre and the complicated domain of the reproductive rights of the women. These acts are responses to a growing industry teem with the ethical quandary, societal implications, and legal crevice. While their intention is to truncate the plausible abuse and ensure ethical standards is assisted reproduction, their implementation and effects on the reproductive accord necessitate a closer analysis. Regulation is indeed vital in alleviating illegal and exploitative practices that have been extensive in the surrogacy industry, where susceptible women often have been subjected to intimidation or inadequate compensation. The prohibition of commercial surrogacy under the Surrogacy (Regulation)Act, 2021 aims to prevent the commercialization of the bodies of women and to prioritize the altruistic surrogacy. Similarly, the Assisted Reproductive Technology Act, 2021 seeks to establish standards for the operation of ART clinics and the handling of genetic material, aspiring to ensure the safety and dignity of all involved parties. However, the regulatory framework must be balanced to safeguard the accord of the women and ensure the equitable access to reproductive healthcare. The rigid eligibility criteria for surrogate mothers, for instance, may fortuitously exclude women from the destitute communities who rely on the surrogacy as a sole mean of financial support. Additionally, the accentuation on the altruistic surrogacy may limit the options available to women who wish to undertake surrogacy as a paid arrangement, thereby constraining their reproductive choices. Ethical considerations loom large in the discourse surrounding surrogacy and assisted reproductive technology. The principles of accord enhance the rights of the individuals to make informed decision about their bodies and reproductive futures. However, concerns arise regarding the potential exploitation of surrogate mothers, especially in contexts where economic dissimilitude are prominent. Their regulations must strike a delicate balance between protecting vulnerable women and respecting them in making reproductive choices.

The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021 demonstrate venerable legislative endeavours expecting at tweaking surrogacy and ART practices in India. These laws were sanctioned to address various misgivings encompassing reproductive technologies, inclusive of the issues related to the exploitation, commercialization, and ethical considerations. The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy in India, permitting as it were altruistic surrogacy procedures for the citizens of India. The altruistic surrogacy concerns a surrogate mother carrying a child for the intended parents without budgetary recompense past restorative costs and insurance indemnification. The act also establishes a National Surrogacy Board to arbitrate the direction of surrogacy strategies and execute moral guidelines. Similarly, the Assisted Reproductive Act, 2021, aims to regulate the practice of ART procedures such as IVF, sperm and egg donation, and foetus transfer. It sets guidelines for the ratification of ART clinics and traces the rights and duties of parties involved in ART procedures, including intended parents, donor, and medical professionals. However, while these legislative measures are intended to shield the reproductive rights and prevent exploitation, they have also provoked debates regarding their impact on access to reproductive services and the accord of individuals seeking fertility treatments. Experts contend that the restrictive nature of the les may limit access to surrogacy and ART services for individuals who are unable to conceive naturally, particularly those from the oppressed communities. Additionally, concerns have been raised regarding the exclusion of the same sex couples and single individuals from accessing surrogacy and ART services under the new regulations, the laws currently only permit heterosexual couples who have been married for at least five years to pursue surrogacy, raising questions about inclusivity and discrimination based on sexual orientation and marital status. Furthermore, the implementation of the Surrogacy (Regulations)Act, 2021, and the Assisted Reproductive Technology, 2021, faces challenges related to enforcement, monitoring, and awareness. There is a need for robust mechanisms to ensure compliance with the regulations, as well as adequate training and education for healthcare professional and the public regarding the rights and responsibilities involved in surrogacy and ART procedures. Further, the policymakers, healthcare professionals, and advocacy groups must collaborate to address these challenges and ensure that legislative measures effectively uphold the reproductive rights while promoting ethical practices and inclusivity. By working towards the inclusive and equitable reproductive policies, India can advance the cause of reproductive justice and ensure that all individuals have the opportunity to exercise their fundamental right to build families on their own terms, while also addressing moral concerns and societal realities.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Sruti Sikha Maharana

[1] https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019

[2] https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf

[3] https://indianexpress.com/article/opinion/columns/on-surrogacy-indian-law-goes-a-step-further-but-not-far-enough-9187014/


[5] https://feminisminindia.com/2022/02/02/the-surrogacy-regulation-act-2021-another-attempt-to-reproduce-a-heteronormative-patriarchal-society/

[6] https://www.thequint.com/news/india/union-cabinet-surrogacy-regulation-bill-2016-sushma-swaraj-against-our-ethos-commercial-surrogacy

[7] https://theleaflet.in/the-surrogacy-bill-2016-a-step-back-for-inclusivity/

[8] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece


[10] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[11] https://www.aljazeera.com/news/2014/3/27/indian-surrogate-mothers-suffer-exploitation#:~:text=But%20in%20a%20blatant%20violation,lose%20out%20in%20the%20bargain.

[12] https://www.tribuneindia.com/news/archive/comment/surrogates-victims-of-abuse-exploitation-712289

[13] https://timesofindia.indiatimes.com/blogs/voices/commercialization-of-surrogacy-in-india-the-effects-of-globalisation/

[14] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece

[15] https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1ebh78ThKZjolGwdnkp7ypdJtCQ2lRsWw4rgO8Mgs5

[16] https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights

[17] https://www.verdictum.in/pdf_upload/shweta-barve-v-keralawatermark-1556613.pdf

[18] https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-kodakara-hawala-heist-ed-not-super-investigating-agency-their-role-comes-after-police-or-cbi-registers-fir-reserves-judgment-257654?infinitescroll=1


Burden To Decide On The Rights Regarding Same Sex Marriage Now Resides With Legislators: Supreme Court Of India

By-Sushant Kumar Sharma


The burden to decide on the demand of legalizing and recognizing same-sex marriage by the LGBTQIA+ community now resides with the legislators after the Hon’ble Supreme Court’s judgment. The petitioners in the case stressed equality rights for the community and acknowledged the unions of same-sex marriage.

The demand for legal recognition of same-sex marriage goes back to the landmark case of  Navtej Singh Johar v. Union of India, in the said case the Hon’ble Supreme Court of India decriminalized homosexuality. However, the issues related to homosexuality which were going to arise in the coming future were not addressed in the case.


Before the judgment of  Navtej Singh Johar v. Union of India article 377 of the Indian constitution categorised intercourse between same sex as an “unnatural Offence”. The provision is a Victorian-era law, which survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations. [1]

Under Articles 14,15,19 and 21 of the Constitution of India, the Naz Foundation Trust challenged the constitutional validity of section 377 of the Indian Penal Code. The contention was that the understanding of sex according to the provision of IPC was solely for the purpose of procreation which is an inadequate and unjust way to deduce the purpose of sex in modern society. The High Court of Delhi ruled in favour of the petitioners and decriminalized same-sex marriage and the same was reversed by the Supreme Court of India in the year 2013. The Supreme Court of India held that the power to decriminalize same-sex marriage is with the parliament and not with the Court.

The judgment of the Supreme Court of India was later challenged in a fresh writ filed by five individuals of the LGBTQ Community in which a five-judge bench of the Supreme Court partially struck down section 377 of IPC and decriminalized same-sex intercourse.

Section 377 of the Indian Penal Code:

Unnatural offenses —Whoever voluntarily has carnal inter­course against the order of nature with any man, woman, or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[2]


After the judgment of the Supreme Court decriminalizing same-sex intercourse on September 2018, there were a lot of people objecting it on the basis of it being against the sentiments and culture of Hindus.  But the origin of the criminalization of homosexuality in India is a reflection of European morality arising out of Christianity and by section 377 of the Indian Penal Code of 1861 Britishers criminalized homosexuality.

On the other hand in Hindu scriptures we can find evidence of Hindu religion being more open and accepting about the queers and homosexuality was a normal aspect of our past which was made into a taboo by the Britishers in the colonial period. For instance few instances from Hindu scriptures are mentioned below:

  • Krittivasa Ramayana: Text states that King Dilip had two wives, and he died without leaving an heir. Following this, Lord Shiva appeared in the dreams of the queens and told them that they would bear a child if they made love to each other. The widowed queens did as directed, and one of them got pregnant, eventually giving birth to King Bhagiratha. He is a famous king known to have brought River Ganga from heaven on earth.[3]
  • Matsya Puran: It talks about the time Lord Vishnu transitioned into a beautiful women named “Mohini” to trick the demons and letting the gods drink the amrit.
  • Mahabhartha: The sacred text of Hindu’s contain a story of Sikhandi who was born a women but was raised as a man who later with the help of yaksha to become a man to enter the war.
  • Kamasutra: Chapter nine of Kamasutra by Vatsyayana discusses oral sexual acts, termed Auparashtika, homosexuality, and sexual activities among transgender persons.[4]


The bench of 5 judges in a majority of  3:2 ruled against the demand of LGBTQIA+ for wanting rights to adopt and constitutional protection for civil unions. But there were several points where the judges agreed with each other and there were points on which they disagreed.

1. Points where the Judges agreed:

1.1 Anonymously the whole bench agreed that queerness is not solely an urban concept :

CJI Dhananjaya Y Chandrachud Said:

Homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works on a farm in an agricultural community,” 

Justice Kaul Said:

The non-heterosexual relation is a part of Indian civilization and Justice Kaul also cited illustrations from the Rig Veda, Somdatta’s Kathasaritsagara, and Sufi tradition to prove that the non-heterosexual unions were a part of mankind through history and different cultures”

“It would thus be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu”

 1.2 Recognition of Same-Sex Marriage is not given under the Special Marriage Act :

CJI Dhananjaya Y Chandrachud Said:

A verdict to strike down the provision of the Special Marriage Act will take India to pre Independence era, the CJI added,  “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another,”

 Justice Kaul:

In a separate Judgement Justice Kaul agreed on SMA being violative of right to equality, he added “However, I recognize that there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships. As rightly pointed out by the learned Solicitor General, tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws,” 

 Justice Bhatt Jointly With Justice Kohli:

They stated that it would be extending the scope of the SMA out of its objective if it was to be read to include same-sex marriage, as the act sought to provide an avenue for those marriages that did not enjoy support in society or did not have the benefit of custom to solemnize.[5]

1.3 Right to Marry is not a Fundamental Right:

Justice Bhat:

“The fundamental importance of marriage remains that it is based on personal preference and confers social status. The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support… There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom.”

Justice Narshimha:

“There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.”

  1. Points where Judges Disagreed:

2.1 Everyone has the right to enter a Civil Union:

CJI Dhananjaya Y Chandrachud said:

“The right to enter into a union includes the right to associate with a partner of one’s choice, according to recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieving the goal of self-development,” 

“A failure to recognise such entitlements would result in systemic discrimination against queer couples,”

 Justice Bhatt:

Justice Bhatt conflicted with the opinion of CJI and Justice Kaul and said “Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require a conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within prohibited degrees; grounds for divorce, right to maintenance, alimony,”  There was an agreement on justice Bhatt’s opinion by Justice Kohli and justice Narasimha.

Justice Narsimha Said:

“The framing of a positive right and the positive entitlements which flow therefrom, essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect, is to amend existing statutory frameworks, if not to legislate afresh,”

 2.2 Regarding queer adopting rights:

CJI Dhananjaya Y Chandrachud said:

“Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution”, Justice Kaul agreed with CJI on this stand.

Justice Bhatt:

Justice Bhatt on the other hand believed that both parents are required for good parenting and stated “To read the law in the manner adopted by the Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child,”  

Justice Narsimha in a separate judgment greed with Justice Bhatt regarding the constitutionality of the CARA Regulations of 2020.


– The 3-2 majority in the five-judge constitutional bench of the Hon’ble Supreme Court rules that there cannot be legal recognition of same-sex marriages in India.

– The petitioners during the hearings argued for the equality rights of the LGBTQIA+ community and pleaded for acknowledgment to lead a dignified life.

– The court held that the queer community of India cannot be legally married under the provisions of the Special Marriage Act, of 1956.

– The court also refused to grant adoption rights for the LGBTQIA community while Chief Justice D.Y Chandrachud held a dissenting opinion.

– The final declaration of the Supreme Court was that the Parliament should decide on the issues regarding the under-inclusivity of the LGBTQIA+ community in the legislation


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[1] Dr. Akkai Padmashali and Ors. v. Union of India, W.P. No. 159 of 2023

[2] The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860

[3] Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India : Why love is not western, LAWCTOPUS (June 29,2021),

[4] Supra

[5] Utkarsh Anand, Same-sex marriage verdict: Points of agreement, divergence between the 5 Supreme Court Justices, HINDUSTAN TIMES (Oct 18, 2023)