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Surrogacy in India: Laws, Legal Challenges, Ethical Issues & Process Explained

Lawkagyan February 16, 2025

 Surrogacy in India: Legal Framework, Challenges, and Ethical Concerns

Introduction

Surrogacy has emerged as a transformative reproductive option for couples and individuals struggling with infertility. However, in India, the practice has undergone significant legal changes, particularly with the enactment of the Surrogacy (Regulation) Act, 2021. While earlier, India was a global hub for commercial surrogacy, legal reforms now strictly regulate who can access surrogacy services, ensuring ethical practices and preventing exploitation.


This article provides an in-depth analysis of the legal implications, challenges, ethical concerns, and procedural aspects of surrogacy in India. It also explores how India’s surrogacy laws compare with international regulations, evaluates real-life case studies, and suggests reforms that could improve the current framework.

Understanding Surrogacy: What It Means in India

What is Surrogacy?

Surrogacy is a reproductive arrangement where a woman (the surrogate) carries a child for another couple or individual (the intended parents). In India, surrogacy is pursued mainly due to medical infertility, where a couple is unable to conceive naturally.

Types of Surrogacy in India

1. Traditional Surrogacy

  • The surrogate mother uses her own egg, making her the biological mother of the child.
  • Conception occurs through artificial insemination.
  • Rarely practiced in India due to legal and emotional complexities.

2. Gestational Surrogacy (Most Common in India)

  • The surrogate carries an embryo created using the intended parents’ sperm and egg or donor gametes.
  • The surrogate has no genetic link to the child.
  • This is the legally accepted form of surrogacy in India under the Surrogacy (Regulation) Act, 2021.

Legal Framework Governing Surrogacy in India

The Surrogacy (Regulation) Act, 2021 – Key Provisions

 1. Only Altruistic Surrogacy is Allowed

  • Surrogacy in India is only permitted for altruistic purposes.
  • The surrogate mother cannot receive financial compensation, except for medical expenses and insurance coverage.

 2. Who Can Opt for Surrogacy?

  • Only heterosexual married Indian couples (husband and wife) can opt for surrogacy.
  • The couple must be married for at least 5 years.
  • The woman must have documented proof of medical infertility.

 3. Who Cannot Opt for Surrogacy?

  • Single parents (including unmarried, divorced, or widowed individuals).
  • LGBTQ+ couples (same-sex couples are excluded).
  • Foreign nationals, NRIs, and OCI cardholders.

 4. Who Can Become a Surrogate?

  • The surrogate must be a close relative of the intended parents.
  • She must be married and have at least one biological child.
  • She can only act as a surrogate once in her lifetime.

5. Regulation of Surrogacy Clinics

  • Clinics must be registered under the National ART & Surrogacy Board.
  • The use of unauthorized clinics is illegal.

 6. Ban on Commercial Surrogacy

  • Commercial surrogacy, where surrogates are paid beyond medical expenses, is illegal.
  • Any violation can result in imprisonment (up to 10 years) and fines (₹10 lakh or more).


Step-by-Step Process for Surrogacy in India

Step 1: Medical Certification for Infertility

  • The intended parents must obtain a certificate of infertility from a government-authorized medical board.

Step 2: Finding a Surrogate

  • The surrogate must be a close relative, married, and have her own biological child.
  • The couple must ensure the surrogate’s informed consent.

Step 3: Legal Procedures

  • A legal contract must be signed between the intended parents and the surrogate.
  • The contract should include medical care, expenses, and parental rights.

Step 4: Embryo Transfer & Pregnancy

  • The embryo (created through IVF) is implanted in the surrogate.
  • The surrogate undergoes prenatal care under strict medical supervision.

Step 5: Parental Order & Birth Certificate

  • After the baby is born, the intended parents apply for a parental order to obtain legal guardianship.
  • The surrogate has no legal claim over the child after the parental order is granted.

Legal Challenges in Surrogacy in India

1. Parental Rights and Legal Parentage Issues

  • The surrogate mother has no legal rights over the child once the parental order is issued.
  • However, if the intended parents refuse to accept the child (due to birth defects or personal reasons), the legal responsibility is unclear.

2. Exploitation Risks

  • Close relatives might feel pressured into surrogacy due to family obligations.
  • Some women may hide financial transactions to benefit from surrogacy while bypassing legal restrictions.

3. Exclusion of LGBTQ+ Couples & Single Parents

  • The current law discriminates against LGBTQ+ individuals and single parents, violating their fundamental right to equality (Article 14 of the Indian Constitution).

4. Lack of Surrogate Protection

  • No provisions ensure mental health support or post-birth care for surrogates.
  • The law does not address surrogacy-related medical complications.

Surrogacy in India vs. Other Countries

Country

Legal Status

Key Features

India

Only altruistic surrogacy

Only married Indian couples with infertility can opt.

USA

Varies by state

Some states allow commercial surrogacy, others ban it.

UK

Altruistic only

Surrogate retains parental rights until a court order is passed.

Russia

Allows commercial surrogacy

Intended parents are legal parents at birth.

France

Completely banned

Contracts are void; the surrogate remains the legal mother.

Case Studies on Surrogacy in India

1. Baby Manji Yamada Case (2008)

  • A Japanese couple commissioned surrogacy in India but divorced before birth.
  • The baby was left stateless as Japan did not recognize surrogacy.
  • The Supreme Court granted the grandmother custody.

2. Balaz v. Union of India (2010)

  • A German couple used an Indian surrogate.
  • India refused to grant citizenship, and Germany did not recognize the child.
  • Raised cross-border surrogacy concerns.

The Future of Surrogacy Laws in India: Reforms Needed

  1. Expand Surrogacy Eligibility – Include LGBTQ+ couples and single parents.
  1. Improve Surrogate Protection – Ensure post-birth care and financial security.
  1. Regulate Cross-Border Surrogacy – Prevent legal issues with foreign parents.
  1. Stronger Contract Enforcement – Protect both intended parents and surrogates.

Conclusion

Surrogacy in India remains a legally, ethically, and socially complex issue. While the Surrogacy (Regulation) Act, 2021 aims to protect women from exploitation, it also excludes many deserving individuals from parenthood. Moving forward, legal reforms should address these gaps, ensuring a fair and inclusive surrogacy system in India.

FAQs on Surrogacy in India

1. Can foreigners opt for surrogacy in India?
No. Only Indian couples are allowed under current laws.

2. Is commercial surrogacy legal in India?
No. Only altruistic surrogacy is permitted.

3. Can a surrogate mother keep the baby?
No. Once a parental order is issued, intended parents are the legal guardians.

4. What is the punishment for illegal surrogacy in India?
Up to 10 years imprisonment and fines up to ₹10 lakh.

 

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