Surrogacy Law in India

A New Surrogacy Law in India - 2021

Understanding Surrogacy Law in India

Surrogacy is a form of assisted reproductive technology in which a woman carries and delivers a child for another couple. To address legal and social concerns associated with surrogacy, the Government of India enacted the Surrogacy (Regulation) Act, 2021, which came into force in December 2021.

 

This Act marked a significant shift from earlier guidelines and aimed to strictly regulate surrogacy practices in India, ensuring transparency and protection of the rights of the surrogate mother and the child.

Objectives of the Surrogacy (Regulation) Act, 2021

The primary objectives of the Act are:

 

  • To prohibit commercial surrogacy and prevent exploitation of women
  • To allow only altruistic surrogacy
  • Protect the health, dignity, and rights of surrogate mothers
  • To safeguard the legal status and welfare of the child
  • To regulate surrogacy clinics through central and state authorities

 

Types of Surrogacy

  1. ❌ Commercial Surrogacy (Prohibited)

The Act strictly bans commercial surrogacy. Any form of monetary compensation, reward, or inducement to the surrogate mother—other than approved medical expenses and insurance—is illegal.

 

  • ✅ Altruistic Surrogacy (Permitted)

Only altruistic surrogacy is allowed. In this arrangement:

 

  • The surrogate mother receives no financial gain
  • She is reimbursed only for medical expenses, insurance coverage, food, and travel related to pregnancy

Eligibility Criteria for Intended Parents

Married Couples

To be eligible for surrogacy in India, a married couple must meet the following conditions:

  • Must be Indian citizens
  • The intending couple must be legally married.
  • The female partner should be between 23 to 50 years of age.
  • The male partner should be between 26 to 55 years of age on the day of certification.
  • The intending couple should not have any living biological child, adopted child, or a child born through surrogacy.
  • The intending couple must obtain certificates of medical indication, essentiality, and eligibility from a registered medical practitioner. These documents prove that they cannot conceive or carry a pregnancy on their own.
  • Must receive eligibility approval from the appropriate authority
  • Only for Indian couples and NRIs, OCI/PIO cardholders with medical indication and with a minimum of five years of marriage.

Eligibility Criteria for Surrogate Mothers

A woman can act as a surrogate only if she fulfills all of the following conditions:

 

  • The surrogate mother must be known to the intending couple.
  • An ever married/ widowed/ divorced woman with at least one biological child can act as a surrogate.
  • The surrogate mother must be between 25 to 35 years of age on the day of embryo implantation.
  • The surrogate mother cannot use her own egg.
  • A woman can act as a surrogate mother only once in her lifetime.
  • The number of surrogacy attempts (embryo transfer cycles) on the surrogate mother cannot exceed three.
  • The surrogate mother must have a certificate of medical and psychological fitness issued by a Registered Medical Practitioner before undergoing any surrogacy procedures.

Biological Criteria and Use of Gametes

Under the Surrogacy (Regulation) Act, 2021:

 

  • Surrogacy is primarily intended to be gestational, where the surrogate does not use her own eggs
  • The intended parents are generally required to provide their own gametes

Certificates and Issuance Levels under the Surrogacy (Regulation) Act, 2021 and Rules, 2022

This article pertains to the notification of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022 in the Gazette of India (Extraordinary). In accordance with the Act and Rules, the details and issuing authorities of the required certificates are as follows:

SN

Relevant Section of Surrogacy (Regulation) Act

Particular of Certificate

Issuance Level

    

1.

Section 4 (iii) (a) (1)

Certificate of Medical Indication necessitating Gestational Surrogacy for intending couple

District Medical Board

2. 

Section 4 (iii) (a)

Certificate of Essentiality for intending couple

Appropriate Authority having jurisdiction over District Medical Board

3. 

Section 4 (b)

Eligibility certificate for surrogate

mother

Chairperson, Dist. Appropriate

Authority for ART & Surrogacy

4. 

Section 4 (b) (v)

Certificate for Medical &

Psychological fitness of surrogate

mother

Registered Medical Practitioner,

preferably OBGY

5. 

Section 4 (c)

Eligibility Certificate for intending

couple for surrogaсу

Chairperson, Dist. Appropriate

Authority for ART & Surrogacy

6. 

Rule 4

Certification of recommendation

State Board

For this purpose, six forms created at the state level are shared for reference to facilitate proper processing. This ensures that surrogacy applications of intending couples are addressed as per regulations and that the medical interests of the surrogate mother are safeguarded in the state.

Conclusion

The Surrogacy (Regulation) Act, 2021 represents a major step for surrogacy in India. By allowing only altruistic surrogacy and imposing strict eligibility and approval mechanisms, the law seeks to balance the aspirations of infertile couples with the protection of surrogate mothers and children.

As legal interpretations continue to evolve, the Act reinforces the principle that surrogacy in India must remain transparent and non-exploitative by placing human dignity and child welfare at its core.