The Legal Relationship Between India’s ART Act and Surrogacy Act: Regulatory Overlap, Normative Inconsistency and a Framework for Reform

Babita Agrawalla; Shyam Lal; Lalit Kumar Dev; Sujata Dash

The Legal Relationship Between India’s ART Act and Surrogacy Act: Regulatory Overlap, Normative Inconsistency and a Framework for Reform

Author(s)	Babita Agrawalla, Dr. Shyam Lal, Dr. Lalit Kumar Dev, Dr. Sujata Dash
Country	India
Abstract	The Assisted Reproductive Technology (Regulation) Act 2021 (ART Act) and the Surrogacy (Regulation) Act 2021 (Surrogacy Act) are companion bills for the new laws, but there is no coherence, either substantive or procedural, of the institutions involved in the practice. This article looks at the relationship between the enactments, from a doctrinal/statutory perspective, as well as a constitutional perspective and by way of a focused comparison with the United Kingdom and South Africa. It implies the statutes are a coherent and less than full co-regulatory system. The general clinical, laboratory, gamete and embryo elements of surrogacy are covered by the ART Act, the special elements of gestational, eligibility and parentage are covered by the Surrogacy Act. But the definitions and institutions are mutually incorporated, as are the divergent eligibility requirements, rules of genetic-connection, consent structures, requirements for registration, record retention periods and criminal classifications. The 2023 and 2024 amendments on donor gametes are examples of multiple substantive changes to access of surrogacy being made via delegated legislation. The implications of the transitional uncertainty and consent and lack of traceability of embryos have been further illustrated by the recent decisions of the Supreme Court in Vijaya Kumari S v Union of India (2025 INSC 1209) and Smt Usha Singh v State of Chhattisgarh (19 January 2026). The article suggests an express general – special relationship clause, harmonised definitions, modular single window licensing, integrated consent and audit protocols, data governance, harmonised data and proportional penalties and transitional provisions. In the longer term, it calls for the consolidation through a Reproductive Assistance and Surrogacy Code that safeguards the reproductive autonomy, the welfare of the surrogate and the interests of the child and guarantees clinical integrity.
Keywords	Assisted reproductive technology; surrogacy; reproductive autonomy; donor gametes; statutory interpretation; reproductive justice; infertility law; India
Published In	Volume 8, Issue 4, July-August 2026
Published On	2026-08-05

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The Legal Relationship Between India’s ART Act and Surrogacy Act: Regulatory Overlap, Normative Inconsistency and a Framework for Reform

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