Draft legislation has been approved by the Union Cabinet in India seeking to limit surrogacy to altruistic arrangements with intended parents who are either Indian citizens or couples residing outside the country but of Indian origin. This follows longstanding debates as to whether commercial surrogacy should be permitted. The primary argument against such arrangements has been the potential to exploit and cause harm to surrogate women. There is considerable literature on the exploitation debate, but little has been written about whether these transactions cause harm to surrogate women. Our article addresses this gap in the literature and develops a three-step framework using Mill's harm principle through which to assess whether harm has occurred. We apply this framework to a sample of women who provided surrogacy services in India between 2006 and 2015, the period just before the government moved to ban overseas couples from accessing commercial surrogacy.
Keywords: Indian surrogacy; commercial surrogacy; harm principle; health law; surrogacy.