From Fertility Markets to Baby Rackets: The Law on Infant Trafficking in India

Introduction

Recent reports from Ahmedabad and Hyderabad describe a 34‑year‑old woman, previously an egg donor, now alleged to be at the centre of an inter‑state child trafficking racket spanning Telangana and Gujarat. According to news coverage, she has been arrested in connection with the trafficking of multiple infants, including a 15‑day‑old baby, and is suspected of coordinating a network of middlemen, families, and possibly medical intermediaries. While many factual details will emerge only at trial, the story starkly exposes the overlap between India’s burgeoning fertility economy and its persistent problem of child trafficking. This article examines the key criminal law issues, the statutory framework, and the broader implications for regulation and enforcement.

Legal Background

The primary constitutional anchor is Article 23 of the Constitution of India, which prohibits trafficking in human beings and begar and makes such conduct an offence punishable by law. Trafficking in persons is specifically criminalised in Section 370 of the Indian Penal Code (IPC), which, post‑2013 amendments, covers recruitment, transport, harbouring or receipt of a person for purposes of exploitation by means such as deception, abuse of power, or inducement.

Where the victim is a child (a person under 18), the law is particularly stringent. Section 370(5) IPC prescribes a minimum sentence of ten years’ rigorous imprisonment, extendable to life, for trafficking of more than one minor. In addition, the sale or purchase of children can attract offences under Sections 372 and 373 IPC (sale or purchase of minors for purposes of prostitution or illicit intercourse), though courts have read these provisions more broadly in some contexts to include general exploitation.

The Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act) adds an additional layer. Section 80 penalises the sale and procurement of children for any purpose, with imprisonment up to five years and fine, escalating when committed by those entrusted with the care or custody of children or by recognised adoption agencies. The JJ Act also regulates adoption and mandates strict procedures and registration for child care institutions.

Overlaying this framework are the Immoral Traffic (Prevention) Act 1956 (ITPA), where sexual exploitation is involved, and sector‑specific laws such as the Assisted Reproductive Technology (Regulation) Act 2021 and the Surrogacy (Regulation) Act 2021, which seek to curb commercialisation and abuse in fertility services. The Supreme Court in Lakshmi Kant Pandey v Union of India (1984) laid down safeguards for inter‑country adoption, emphasising that children cannot be treated as commodities in a market. Later decisions, including Bachpan Bachao Andolan v Union of India, highlighted the duty of the State to combat child trafficking and ensure effective victim rehabilitation.

Critical Analysis

On the facts reported, the alleged conduct appears to fall squarely within the definition of trafficking under Section 370 IPC and sale of a child under Section 80 JJ Act. If the prosecution establishes that the accused, in concert with others, arranged the transfer of infants from biological parents (or intermediaries) to buyers for monetary gain, the elements of "recruitment" and "receipt" of a person by means of inducement and deception will likely be satisfied. The very young age of the infants strengthens the inference of exploitation: a newborn cannot consent, and any purported parental consent obtained through fraud or payment is vitiated.

Indian courts have repeatedly stressed that the gravamen of trafficking is the process and purpose of exploitation, not merely the end use. In Bachpan Bachao Andolan, the Supreme Court treated trafficking broadly, covering situations where children were moved and placed into exploitative labour or begging rackets, emphasising that the State must look beyond formal labels and scrutinise the underlying economic arrangements. By analogy, an apparently "private adoption" or "informal placement" that in fact involves a commercial transaction and bypasses statutory safeguards may be characterised as trafficking, even if the child is not destined for prostitution or forced labour.

The reported role of the accused as a former egg donor raises a further dimension: the porous boundary between regulated reproductive services and illicit markets for children. While factual details are still emerging, one plausible hypothesis is that knowledge of fertility clinics, donors, and prospective parents may have enabled networking that morphed into illegal brokering of infants. If any registered medical practitioner, clinic employee, or surrogacy/ART intermediary is shown to have facilitated such transfers, liability could arise under the JJ Act, the IPC (including abetment and conspiracy provisions), and professional misconduct rules under medical council regulations.

Another critical issue is mens rea and the characterisation of the buyers. In some reported trafficking cases, prospective adoptive parents claim ignorance of the illegality, believing they were completing a lawful adoption arranged by intermediaries. The criminal law does not lightly excuse wilful blindness. If buyers paid consideration, failed to insist on JJ Act‑compliant adoption procedures, and accepted forged or incomplete documentation, courts may infer knowledge or at least reckless disregard. That said, sentencing and charging decisions sometimes distinguish between organised traffickers and unsophisticated couples desperate for a child, focusing heavier penalties on the former while considering mitigating factors for the latter.

Procedurally, this case illustrates persistent weaknesses in inter‑state coordination. The alleged racket spans Telangana and Gujarat, necessitating cooperation between state police forces, Anti‑Human Trafficking Units, and possibly central agencies. The Supreme Court in various PILs on trafficking has criticised fragmented investigations and called for integrated, victim‑centred approaches. Here, effective use of digital trails (phone records, financial transactions, hospital logs), along with witness protection for vulnerable biological mothers, will be crucial to converting initial arrests into sustainable convictions.

Human rights considerations also loom large. Infants in such rackets are doubly victimised: first by being commodified and removed from their families without due process, and then by being placed into legal limbo if the transactions are later uncovered. The JJ Act obliges authorities to prioritise the best interests of the child, which may require careful, case‑specific decisions about whether to return the child to biological parents, place them in foster care, or regularise adoption through lawful procedures. In Lakshmi Kant Pandey, the Supreme Court insisted that adoption processes must safeguard identity, welfare, and long‑term well‑being; these principles apply with equal force in purely domestic trafficking situations.

Opinion & Outlook

From a criminal law perspective, the reported facts, if proven, warrant robust use of Section 370 IPC, JJ Act offences, and conspiracy provisions, with charges calibrated to reflect the organised and trans‑state nature of the enterprise. Sentences at the higher end of the statutory range would be defensible, particularly where multiple infants are involved and where the accused occupied a central coordinating role.

However, punitive responses alone are unlikely to dismantle the structural drivers of such rackets. Demand for infants is fuelled by restrictive and often slow adoption processes, limited awareness of lawful alternatives, and the social premium placed on biological or infant children. On the supply side, poverty, gender discrimination, and gaps in maternity care make vulnerable mothers easy targets for brokers. The jurisprudence in Bachpan Bachao Andolan underscores that anti‑trafficking efforts must integrate social welfare measures, not merely penal sanctions.

Regulatory oversight of fertility and surrogacy practices remains a weak link. The ART and Surrogacy Acts provide a framework, but effective implementation requires proactive inspections, mandatory reporting of all births facilitated by clinics, and clear obligations to verify that every child’s legal status is regularised through the JJ system, not private arrangements. Professional sanctions for medical practitioners and facilitators implicated in illegal transfers should be swift and publicised, reinforcing the message that the fertility industry cannot be a front for child markets.

Going forward, specialised fast‑track courts for trafficking and JJ Act offences could reduce delays that often erode witness testimony and public confidence. Victim compensation and psychosocial support for biological mothers—who may themselves be victims of coercion or deception—must be integrated into case outcomes. Data from this and similar prosecutions should inform periodic reviews of adoption procedures, with an eye to making lawful adoption more accessible while maintaining stringent safeguards.

Conclusion

The unfolding infant trafficking case linking Telangana and Gujarat is not an aberration but a symptom of deeper tensions between market forces, reproductive desires, and the rights of the child. Indian criminal law, anchored in Article 23, the IPC, and the JJ Act, provides more than sufficient tools to prosecute the individuals allegedly at the centre of such rackets. The real test lies in consistent enforcement, cross‑border coordination, and regulatory vigilance over sectors—like fertility services—where vulnerability and profit intersect. The legal system must send a clear signal that children, whether unborn, newborn, or older, can never be treated as transferable assets in an underground market.