What are the laws on surrogacy in India?

Eligibility under the Surrogacy (Regulation) Act, 2021 is narrow:

(1) Indian married heterosexual couples — both must be Indian citizens; the woman must be 23-50, the man 26-55;
(2) Medical indication required — at least one partner must have a medical condition certified by a District Medical Board making natural conception impossible (e.g., absent uterus, recurrent miscarriages, infertility despite treatment);
(3) No surviving biological or adopted child — except where the existing child is physically/mentally challenged or suffers from a life-threatening disorder;
(4) Single women — only widows or divorcees aged 35-45 are eligible; single mothers, never-married women, LGBTQ+ individuals are not eligible;
(5) Foreigners, OCIs, NRIs and PIOs — categorically barred from commissioning surrogacy in India.

This is a significant tightening from the pre-2021 regime. Constitutional challenges to the exclusionary aspects are pending; the Supreme Court has issued interim relief in some cases but the framework largely stands.

Altruistic surrogacy — the surrogate bears the child without monetary compensation beyond:

(1) Medical expenses related to the pregnancy and post-natal care;
(2) Insurance coverage for 36 months post-delivery (covering complications);
(3) Reimbursement of pregnancy-related costs;
(4) NO additional payment — no fee for carrying the child, no compensation for time, opportunity cost, or pain.

Commercial surrogacy — surrogate is paid a fee for carrying the child. Was the norm in India until 2021; explicitly prohibited by Section 35 of the Act. Penalty for commercial surrogacy: imprisonment up to 10 years + fine up to ₹10 lakh.

The Act's logic is that commercial surrogacy involves exploitation of economically vulnerable women. Critics argue altruistic-only surrogacy may push couples to coerce family members, or push surrogacy underground.

For non-Indian couples, options like Georgia, Ukraine, Mexico, and parts of the USA remain available but with different complications. Engage a reputable, specialised reproductive law lawyer.

Strict eligibility criteria apply under Section 4 of the Act:

(1) Must be a close relative of the intending couple — daughter, sister-in-law, niece (with documentary proof of relationship);
(2) Ever-married woman with one biological child of her own;
(3) Age 25-35 at the time of implantation;
(4) Married, with husband's written consent;
(5) Can be a surrogate only ONCE in her lifetime;
(6) Medical fitness certificate from a registered ART centre;
(7) Insurance for 36 months post-delivery, funded by the intending couple.

The 'close relative' requirement is the practical chokepoint — many couples don't have an eligible relative willing to carry the pregnancy. The Supreme Court has reviewed some hardship cases but the rule largely stands.

The surrogate cannot provide her own eggs — gametes must come from the intending parents (with limited 2023 relaxation for medical donor eggs). This ensures genetic parentage clarity.

Step 1 — Medical evaluation at a registered ART clinic. Obtain documentation of infertility and medical indication.

Step 2 — Identify an eligible surrogate (close relative, meeting all criteria). She must consent in writing with husband's consent.

Step 3 — Apply for the Certificate of Essentiality from the District Medical Board confirming medical need. Apply for the Certificate of Eligibility from the National Surrogacy Board / State Surrogacy Board confirming all eligibility criteria are met.

Step 4 — Execute the Surrogacy Agreement before the District Magistrate. The agreement covers expenses, insurance, custody, and post-birth obligations.

Step 5 — Procedure performed at a registered ART centre — Section 8 of the ART Act regulates the clinic, embryologist and procedure.

Step 6 — Pregnancy and birth. The intending parents are the legal parents from birth — no separate adoption process.

Step 7 — Birth registration showing the intending couple as parents, with the surrogacy agreement and certificates attached.

Engage a reputable, specialised reproductive law / family lawyer throughout — each step has procedural requirements that, if missed, can invalidate the surrogacy.

Section 35 imposes serious criminal penalties:

(1) Commercial surrogacy — imprisonment 5-10 years + fine ₹5-10 lakh;
(2) Forcing the surrogate or exploiting her — same;
(3) Abandoning the child by the intending couple — imprisonment up to 10 years + fine ₹10 lakh;
(4) Selling, importing or exporting an embryo or gamete for surrogacy — up to 10 years + ₹10 lakh fine;
(5) Sex-selective surrogacy — imprisonment up to 10 years + ₹10 lakh fine;
(6) Surrogacy by non-eligible persons (foreigners, single individuals not meeting criteria) — imprisonment up to 10 years + fine;
(7) Doctor, clinic, embryologist conducting non-compliant surrogacy — same penalties plus cancellation of registration.

The intending couple is jointly liable for breaches. The child born from a non-compliant arrangement remains a legitimate Indian citizen for protective reasons, but the parents face prosecution.

For ART procedures generally, see the Assisted Reproductive Technology (Regulation) Act, 2021. Engage a reputable, specialised reproductive law lawyer before any step.