Is Surrogacy Legal in India? Here’s What You Need to Know

Surrogacy is an arrangement where a woman agrees to carry and deliver a child for another person or couple (the intended parents). For years, India was known as a hub for commercial surrogacy, attracting individuals from around the world. However, concerns grew regarding the potential exploitation of surrogate mothers and the commodification of childbirth.

In response, the Surrogacy (Regulation) Act, 2021, was enacted, fundamentally transforming India’s stance. The key takeaway is that commercial surrogacy is now banned, and only altruistic surrogacy is permitted. This means the surrogate mother receives no financial compensation beyond reimbursement for medical expenses and insurance coverage related to the pregnancy.

Eligibility for Intending Parents

Check Your Eligibility for Surrogacy in India

The Surrogacy (Regulation) Act, 2021, sets forth very specific and strict eligibility criteria for individuals or couples wishing to pursue surrogacy. Meeting these requirements is mandatory, and intending parents must obtain both a ‘Certificate of Essentiality’ (proving medical need) and a ‘Certificate of Eligibility’ from the appropriate authorities before proceeding.

Who Can Become a Parent Through Surrogacy?

The law defines who can legally seek surrogacy in India:

• Citizenship: Intending parents must be Indian citizens. Foreign nationals are explicitly excluded. The situation for Overseas Citizens of India (OCI) cardholders is complex. While the Act defines the ‘intending couple’ as Indian, some interpretations suggest OCI cardholders with Indian passports might qualify. However, official circulars from the Ministry of Home Affairs have previously restricted permissions for OCI cardholders to commission surrogacy. Due to this ambiguity, OCI cardholders should seek specific legal counsel.
• Marital Status & Type: Surrogacy is primarily available to legally married, heterosexual Indian couples. Many interpretations and earlier drafts mentioned a minimum marriage duration of five years, although the final Act defines ‘couple’ based on legal marriage and age without explicitly stating the 5-year duration in the definition itself. Clarification on this specific point from legal experts is advisable. The law explicitly excludes single men, unmarried couples (including live-in partners), same-sex couples, and other LGBTQIA+ individuals from accessing surrogacy.
• Intending Woman: A specific provision allows Indian women who are widows or divorcees, aged between 35 and 45 years, to opt for surrogacy.
• Age Limits: For married couples, the wife must be between 23 and 50 years old, and the husband must be between 26 and 55 years old.
• Medical Necessity: The intending couple (or intending woman) must have a proven medical indication necessitating gestational surrogacy, certified by a District Medical Board. This could include conditions like absence or removal of the uterus (e.g., due to MRKH syndrome), multiple failed IVF attempts, recurrent pregnancy loss, or other medical conditions making carrying a pregnancy impossible or life-threatening. Proven infertility is generally defined as the inability to conceive after one year of unprotected intercourse. This requirement firmly places surrogacy within a medical treatment context, distinguishing it from an elective reproductive choice.
• Existing Children Rule: Intending parents must not have any surviving child (biological, adopted, or born via prior surrogacy). An exception is made if the existing child suffers from a mental or physical disability or a life-threatening illness with no permanent cure, as certified by the appropriate authority.

The stringency of these criteria underscores a legislative approach that defines a specific model of family eligible for surrogacy – namely, married, heterosexual, Indian, and typically childless couples facing medical infertility. This framework has drawn criticism for being discriminatory and excluding many individuals and couples who may wish to build families through surrogacy.

Table 1: Summary of Intending Parent Eligibility Criteria in India

The Surrogacy Process & Key Regulations

Altruistic Model and Commercial Ban

The law permits only altruistic surrogacy. In an altruistic arrangement, the surrogate mother receives no financial compensation for carrying the child. The intending parents are only permitted to cover the surrogate’s medical expenses incurred during pregnancy and postpartum, the mandatory insurance coverage, and potentially other prescribed expenses necessary for the surrogacy process. The primary intention behind this shift is to prevent the exploitation of women and promote ethical practices within assisted reproduction.

The Surrogacy (Regulation) Act, 2021, imposes a complete ban on commercial surrogacy. Commercial surrogacy is defined as any arrangement involving a monetary benefit or reward (in cash or kind) paid to the surrogate mother, her representative, or any organisation, exceeding the basic medical expenses and insurance coverage. Engaging in or facilitating commercial surrogacy now carries severe penalties, including imprisonment for up to 10 years and fines up to ₹10 lakhs.

This strictly altruistic model raises practical questions. The requirement for the surrogate to be a ‘close relative’ combined with the lack of financial compensation significantly narrows the pool of potential surrogates. Concerns exist that suitable relatives may be scarce or unwilling, potentially placing undue emotional pressure on family members to act as surrogates, which could inadvertently lead to different forms of exploitation or coercion. Critics also argue that the model doesn’t fully acknowledge the surrogate’s time, effort, and the physical demands of pregnancy.

Using Donor Eggs or Sperm

This area has seen significant legal development and remains complex. A government notification in March 2023 amended the rules under the Surrogacy Act, banning the use of donor gametes (eggs or sperm) and stating that intending couples must use their own gametes. This created challenges for couples where one or both partners cannot produce viable gametes.

However, the Supreme Court of India has intervened. It stayed the operation of this rule (specifically Rule 7) in a case involving a woman with Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome, allowing her to use donor eggs. The Court also interpreted the Act’s requirement for the child to be “genetically related” to the intending couple as primarily meaning related to the husband, especially in cases of gestational surrogacy necessitated by the wife’s medical condition.

Crucial Advice: The situation regarding donor gametes is currently fluid and subject to judicial interpretation. While the general rule restricts donor gametes, exceptions are being made for specific medical conditions. This highlights a tension between the law’s initial wording and the medical realities faced by some infertile couples. Intending parents needing donor gametes must seek personalized advice from legal experts and fertility specialists, like the team at Shinefertility, to understand how the current rules and court rulings apply to their specific circumstances.

Choosing a Clinic and Legal Process

Surrogacy procedures, including IVF and embryo transfer, can only be conducted at clinics registered under the ART Act and Surrogacy Act. Advertising commercial surrogacy or inducing women to become surrogates is prohibited.

The legal process is comprehensive and involves multiple steps and authorities. Intending parents and the surrogate mother must obtain eligibility and essentiality certificates from the ‘appropriate authority’ (appointed by central/state governments). A District Medical Board must certify the medical need for surrogacy. A Magistrate’s court must pass an order regarding the parentage and custody of the child born through surrogacy. A legally binding agreement between the intending parents and the surrogate mother is also crucial.

This dual regulatory framework under the ART Act and Surrogacy Act, involving National and State Boards, registration bodies, and multiple certifications, creates a complex bureaucratic pathway. While designed for thoroughness and oversight, navigating this landscape requires careful planning and often legal assistance.

Importantly, the law states that a child born through surrogacy is deemed the biological child of the intending couple, granting them full parental rights and responsibilities from birth. The surrogate mother has no parental rights over the child. Furthermore, the intending parents cannot abandon the child under any circumstances, including disability or gender.

How Shinefertility Can Support Your Journey

Start Your Fertility Journey with Shinefertility

Navigating the complexities of fertility treatment and the associated legal landscape can be challenging. At Shinefertility, we understand the emotional and practical aspects involved. Our team possesses deep expertise in Assisted Reproductive Technologies (ART) and provides a comprehensive range of fertility treatments.

While we strictly adhere to all Indian regulations governing surrogacy, meaning we do not facilitate any prohibited commercial aspects or arrangements that fall outside the legal altruistic framework, we can play a vital role in your journey. Shinefertility can assist with essential preceding steps legally permissible under the ART Act and necessary for gestational surrogacy. This includes:

• Comprehensive fertility assessments for both partners.
• Advanced In-Vitro Fertilization (IVF) procedures to create embryos.
• Guidance on navigating the medical requirements within the legal framework.
• Potentially assisting with donor programs (eggs/sperm) where legally permissible under the ART Act for general fertility treatments (distinct from the specific restrictions under the Surrogacy Act’s donor gamete rules).

We are committed to providing ethical, transparent, and compassionate care, supporting you with the medical expertise needed as you explore your options for building a family (- reflecting general fertility center values).

Conclusion & Next Steps

Surrogacy in India is legal, but it operates under a tightly regulated, altruistic-only model established by the Surrogacy (Regulation) Act, 2021. The ban on commercial surrogacy, strict eligibility criteria for both intending parents and surrogate mothers, the requirement for the surrogate to be a ‘close relative’, and the evolving rules around donor gametes are key aspects to understand.

This legal framework aims for ethical practices but presents significant hurdles and complexities. If you are considering surrogacy or other fertility treatments in India, it is crucial to be well-informed about the current laws and seek guidance from qualified professionals.

We encourage you to reach out to Shinefertility. Our experienced team can provide comprehensive fertility assessments, discuss advanced ART options like IVF, and offer the support and clarity you need to navigate your path to parenthood within the boundaries of Indian law. Contact us today for a consultation.

Frequently Asked Questions (FAQs)

Q1: Is surrogacy legal in India?

A: Yes, surrogacy is legal in India, but only altruistic surrogacy is permitted under the Surrogacy (Regulation) Act, 2021. This means the surrogate mother receives no monetary compensation beyond reimbursement for medical expenses and insurance coverage. Commercial surrogacy, where the surrogate mother receives monetary compensation beyond medical expenses and insurance, is strictly banned.

Q2: Who is eligible to seek surrogacy in India (Intending Parents)?

A: Eligibility is restricted to legally married, heterosexual Indian couples (wife aged 23-50, husband 26-55) with proven medical necessity for surrogacy (certified infertility or specific medical conditions) and generally no surviving children (exceptions apply for children with severe disabilities/illnesses). Indian women who are widows or divorcees (aged 35-45) meeting similar medical and child criteria can also seek surrogacy. Intending parents must obtain essentiality and eligibility certificates.

Q3: Who cannot opt for surrogacy in India?

A: The law currently excludes foreign nationals , single men , unmarried couples (including live-in partners) , same-sex couples, and other LGBTQIA+ individuals. The eligibility of OCI cardholders is complex and may require legal verification.

Q4: Who can be a surrogate mother in India?

A: A surrogate mother must be a ‘close relative’ of the intending couple. She must be an ever-married woman between 25 and 35 years old with at least one child of her own. She must be medically and psychologically fit, provide informed consent, and can only act as a surrogate once in her lifetime. She cannot provide her own eggs.

Q5: Does the surrogate mother have to be a ‘close relative’?

A: Yes, the Surrogacy (Regulation) Act, 2021 requires the surrogate mother to be a ‘close relative’ of the intending couple. However, the Act does not define the term ‘close relative’, which creates ambiguity and necessitates legal advice.

Q6: Can donor eggs or sperm be used for surrogacy?

A: Generally, no. A March 2023 amendment banned the use of donor gametes, requiring intending couples to use their own eggs and sperm. However, the Supreme Court has stayed this rule in specific cases, such as allowing a woman with MRKH Syndrome to use donor eggs. The court also interpreted the ‘genetically related’ requirement to primarily mean related to the husband in certain gestational surrogacy cases. This area is legally complex and evolving, so expert consultation is crucial.

Q7: What costs can be legally covered for the altruistic surrogate?

A: In altruistic surrogacy, the surrogate mother receives no financial compensation or remuneration for carrying the child. Intending parents are only permitted to cover the medical expenses incurred during pregnancy and postpartum, the mandatory insurance coverage, and potentially other prescribed necessary expenses (like travel, maternity wear, nutrition).

Q8: What is the mandatory insurance coverage for the surrogate mother?

A: The intending couple must provide insurance coverage for the surrogate mother for a period of 36 months. This insurance must cover health issues and complications arising during pregnancy and postpartum, including potential death.

Q9: What happens if the intending parents already have a child?

A: Generally, couples or individuals with a surviving child (biological, adopted, or born via prior surrogacy) are ineligible to pursue surrogacy. An exception exists if the existing child suffers from a mental or physical disability or a life-threatening illness with no permanent cure, as certified by the appropriate authority.

Q10: What are the penalties for engaging in commercial surrogacy?

A: Engaging in or facilitating commercial surrogacy is a punishable offense under the Surrogacy (Regulation) Act, 2021. Penalties can include imprisonment for up to 10 years and fines up to ₹10 lakhs (1 million rupees).

Disclaimer: 

The content provided in this blog regarding surrogacy and fertility treatments is intended solely for informational purposes and should not be interpreted as legal or medical guidance. Laws and regulations related to fertility and surrogacy can differ significantly by region and may evolve. We advise consulting with experienced legal and medical professionals to receive tailored advice suited to your circumstances. ShineFertility disclaims any liability for actions taken based on the information presented in this blog.