ADOPTION AND SURROGACY: NAVIGATING THE LEGAL AND ETHICAL LANDSCAPE

INTRODUCTION

In today’s world of changing family structures, evolving reproductive technologies, and shifting social and cultural values, adoption and surrogacy have become significant methods for starting or expanding a family. Whether due to infertility, personal choice, or goodwill, many people opt for these options to experience parenthood. This blog aims to examine the legal and ethical considerations surrounding adoption and surrogacy in India.

ADOPTION: A LEGAL AND EMOTIONAL COMMITMENT

Adoption is the process by which an individual or a couple assumes the rights of parenting a child. Adoption permanently transfers all the rights of the child from the biological parent(s) to the adoptive parent(s).

In India, adoptions are managed and facilitated by the Central Adoption Resource Authority (CARA), which operates under the Ministry of Women and Child Development. Adoption for Hindus is governed by the Hindu Adoption and Maintenance Act (HAMA), 1956^[1], while for other communities, the process is regulated by the Juvenile Justice (Care and Protection of Children) Act, 2015^[2].

Eligibility:

• In India, a child can be adopted by citizens, NRIs, and foreign nationals under specific conditions.
• Only children up to 18 years of age can be adopted.

Legal Procedure^[3]:

1. Intending parents need to register with an adoption placement agency.
2. The agency worker will then approach the intending parents to see their living conditions and to do their counselling.
3. Once a suitable child is found, the agency will call the intending parents for their approval.
4. If the parents’ approval is granted, the agency will hand over the child with all his/her belongings, once the parents sign the adoption agreement.

Types of Adoption^[4]:

1. Open Adoption: In this, the biological parents and the adoptive parents maintain contact.
2. Semi-open Adoption: In this, the biological parents maintain limited contact through an agency; direct contact is not maintained between the child and its biological parents.
3. Closed Adoption:  In this, no contact is maintained between the biological parents and the adoptive parents or the child.
4. Intra-family Adoption: In this, the adoption takes place within the family, by a member of the family or a relative of the child.
5. Domestic Adoption: In this, both the biological and adoptive parents are Indian citizens.
6. International Adoption: Adoption of a child from another country by Indian citizens or NRIs.

SURROGACY: SCIENCE MEETS PARENTHOOD

Surrogacy is an arrangement whereby a woman, called the surrogate mother, gets pregnant and gives birth to a baby for a couple who will become the legal parents of the child.

Surrogacy, in India, is governed by the Surrogacy (Regulation) Act, 2021^[5], which clearly states that surrogacy can only be carried out for altruistic purposes. Commercial surrogacy is banned in India.

Eligibility^[6]:

• The intending parents must not already have a living child, whether biological, adopted, or through surrogacy.
• The couple should have been married for at least 5 years.
• The intending mother should be between 25 and 50 years of age, and the father should be between 26 and 55 years of age.
• The surrogate mother should be a close relative of the couple, aged between 25 and 35 years of age.
• The surrogate mother should be a married woman with a child of her own.
• LGBTQ+ couples and live-in partners are currently not eligible for surrogacy.

    Types of Surrogacy^[7]:

1. Traditional Surrogacy: In traditional surrogacy, the intending father’s semen is artificially planted inside the surrogate mother. Therefore, in this case, the surrogate mother is also the biological mother of the baby.
2. Gestational Surrogacy: In gestational surrogacy, the egg of the intending mother is fertilised with the sperm of the intending father, artificially, using the In-Vitro Fertilisation (IVF) technique. So, the surrogate mother, in this case, is not the biological mother of the baby.
3. Altruistic Surrogacy: In most other methods of surrogacy, the surrogate mother is compensated for her time, efforts, and money. But, in altruistic surrogacy, the surrogate mother is only provided with reimbursement for medical costs incurred during her pregnancy. In this type of surrogacy, the surrogate is generally helping a couple out of kindness and expects nothing in return. This type of surrogacy is generally done by a relative or a close friend of the intending parents.
4. Independent Surrogacy: In independent surrogacy, the surrogate is an independent woman who is not associated with any surrogacy agencies and is set to do everything on her own. This kind of surrogacy is generally risky as it is not supervised by professionals.

ADOPTION VS SURROGACY: A LEGAL COMPARISON

ETHICAL ISSUES IN ADOPTION:

• Best interest of the child: It is of utmost importance that the child’s physical, mental, and emotional well-being is taken into consideration.
• Consent and coercion: It is important to ensure that the biological parents of the child were not forced to give the child up for adoption.
• Cultural identity: In international and cross-cultural adoptions, it is important to ensure that the child knows about his/her origin and cultural values.

ETHICAL ISSUES IN SURROGACY:

• Exploitation of women: It is easy to exploit poor and underprivileged women through surrogacy.
• Commodification of reproduction: Producing children under contracts can be seen as transforming reproduction into a transactional business.
• Autonomy and consent: It is essential to ensure that the surrogate mother’s consent is free and not coerced.

CRITICISM:

• The exclusion of LGBTQ+ couples and live-in partners from the laws governing adoption and surrogacy has been repeatedly questioned and criticised by activists advocating for inclusivity and equal rights.
• There is a growing demand for the regulation of fertility clinics and for laws to evolve with societal and technological changes.

SOCIETAL PERCEPTION AND STIGMA

Despite being supported by laws, adoption and surrogacy are often stigmatised by society for being unconventional reproductive practices. Adoptive children are usually forced to face the cruel questions by their peers, surrounding their origin and “real” family. Similarly, families that choose adoption or surrogacy to start a family also go through a very tough phase when being frequently asked about their children.

The social stigma around adoption and surrogacy creates a lot of problems for families that are trying to live happily despite facing reproductive challenges. It also affects the mental and emotional health of the children, who are often too young to face the harsh truth of reality.

CONCLUSION

Adoption and surrogacy are two effective but sensitive ways of creating a family. While it rekindles one’s hope to become parents and nurture a child, it also needs a proper legal framework and guidance in order to protect the rights of the child, the biological parents, and the intending parents.

It is also necessary to educate and sensitise people regarding adoption and surrogacy. The families made by adoption or surrogacy are no less of a family than those made by conventional methods of reproduction. Love, care, and support for each other are what make a bunch of people into a family. Although India’s legal structure surrounding adoption and surrogacy has evolved significantly, challenges remain. These challenges can be overcome by making society aware that families are families, whether blood-related or not.

Author(s) Name: Shatakshi Sharma (RPNLU, Prayagraj)

References:

[1] Hindu Adoption and Maintenance Act 1956

[2] Juvenile Justice (Care and Protection of Children) Act 2015

[3] Sreeraj.K.V., ‘Legal Process For Adopting A Child In India’ (iPleaders, August 28, 2015) accessed July 12, 2025.

[4] Adv. Yogita Joshi, ‘Types of Adoption In India’ (Rest The Case, August 11, 2022) accessed July 12, 2025.

[5] Surrogacy (Regulation) Act, 2021

[6] Vajiram Editor, ‘Legal Provisions Related to Surrogacy in India’ (Vajiram & Ravi, October 27, 2023) accessed July 12, 2025.

[7] Dr. Nidhi Sharma, ‘Types of Surrogacy in India’ (FertilityWorld) accessed July 12, 2025.