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PRIME LEGAL | Surrogacy in India: What the Law Recognizes and What Intended Parents Need to Know

November 14, 2026by Primelegal Team

ABSTRACT

Surrogacy has come up as one of the prominent methods of assisted reproduction for people who cannot bear children without external help. But surrogacy has come under criticism because of issues related to the exploitation of women, the commercialisation of childbirth, and the rights of the child born via surrogacy. To deal with these issues, the Indian government has brought the Surrogacy (Regulation) Act, 2021. The said Act allows only altruistic surrogacy and prohibits commercial surrogacy in India. This paper will analyse the legality of surrogacy in India, the Act, some important judicial pronouncements, and problems faced by the intended parents and surrogate mothers.

INTRODUCTION

Surrogacy is a form of assisted reproduction wherein a woman acts as a surrogate mother by carrying and delivering a child for someone else who will become the parents of that child. Surrogacy opens doors for people who cannot conceive or carry a pregnancy due to various medical reasons and problems. Advances in medical science, including in vitro fertilisation (IVF), have led to surrogacy gaining popularity as one way for people to have their own children.

The practice of surrogacy in India has not taken place within a legal context. The country has turned out to be a preferred destination for domestic as well as foreign couples due to the presence of medical infrastructure and relatively cheap reproductive services. But along with it, the practice of commercial surrogacy has created several issues regarding the exploitation of poor women, lack of informed consent, insufficient medical security and disputes about the custody and parentage of the child. Sometimes, children born via surrogacy are left uncertain about their citizenship and nationality, especially when the intended parents are foreigners.

These issues called for legislation that would ensure regulation of surrogacy while safeguarding the rights and dignity of all the parties involved. The prior ICMR guidelines offered certain norms regarding assisted reproductive technologies; however, they lacked the legislative authority of a bill. In consequence, the Surrogacy (Regulation) Bill was drafted, which led to the passing of the Surrogacy (Regulation) Act, 2021. It became effective on 25 January 2022. According to this piece of legislation, commercial surrogacy is not allowed, whereas altruistic surrogacy is permissible subject to certain conditions.

The question of regulation of surrogacy also leads to constitutional issues. Article 21 of the Constitution of India provides the right to life and liberty, which includes the right to make reproductive choices and the right to decide upon parenthood. On the other hand, the law must guarantee the well-being, respect and consent of surrogate mothers and equal protection to the children conceived via surrogacy. Thus, surrogacy is more than just a medical procedure as it involves questions of individual freedom, gender equality and human dignity.

Although the Act of 2021 seeks to strike a balance between the interests in question, its eligibility criteria, restrictions on commercial aspects of the process, and limited access to it have triggered discussions. This article aims to consider the legal status of surrogacy in India, the legislative regulation of the procedure, the court’s approach to reproductive rights and the problems of a balanced system.

LEGAL FRAMEWORK GOVERNING SURROGACY IN INDIA

The main law that deals with the issues related to surrogacy in India is the Surrogacy (Regulation) Act, 2021. Two types of surrogacies are recognised by this Act, namely:

  • Altruistic Surrogacy: As per Section 2(b), the surrogate mother should not get any kind of payment, reward or compensation. However, the expenditure for medical treatment, insurance, etc. is allowed.
  • Commercial Surrogacy: Commercial surrogacy means that the surrogate mother gets some kind of payment or reward apart from the medical treatment and insurance, as per Section 2(g).

Section 4 permits surrogacy only in case of a medical necessity for gestational surrogacy and for altruistic reasons only. It also requires the necessary certificates to be obtained.

The law lays down stringent eligibility criteria for the intending parents. The intending couple must be married, and the female should be aged 23-50 and the male 26-55 years old. They must not have any surviving children, whether biological, adopted, or born through surrogacy, except in the situation where the existing child suffers from a specified disability or terminal illness. A single intending woman is considered eligible only if she is an Indian widow/divorcee in the age group of 35-45 years.

The surrogate mother must be an ever-married woman having her own child, and she must be aged 25-35 years. She cannot use her own gametes and can be a surrogate only once in her lifetime.

Moreover, Section 6 requires that the surrogate be provided with the risks of medical complications associated with surrogacy and that she provides written informed consent for the same. The surrogate has the right to revoke her consent before embryo implantation. Section 7 ensures that the intending parents cannot abandon their child who is conceived by way of surrogacy based on grounds such as disability of the child, any medical complication of the child, or because of its gender.

JUDICIAL APPROACH TOWARDS SURROGACY

Indian courts have made valuable contributions to the recognition of the rights of surrogate children and reproductive autonomy.

In Baby Manji Yamada v. Union of India, (2008) 13 SCC 518, the Supreme Court of India addressed the matter involving a child born via surrogacy in India to a Japanese couple. In view of their separation, the issue of custody of the child and her nationality had to be decided. In this case, the Court touched upon the concept of surrogacy and acknowledged the necessity for formulating a proper law to deal with such matters. This case brought to light the problems that may be encountered by children born via surrogacy in the absence of a law governing them.

Jan Balaz v. Anand Municipality, AIR 2010 Guj 21 was an important case involving the citizenship of twin babies born in India as a result of surrogacy, in which the biological father is from Germany. It raised many important issues related to citizenship, parentage and the legal status of children born via surrogacy.

Furthermore, in the case of Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, the Supreme Court recognised the right of a woman to exercise her reproductive rights as being within the purview of the constitutional right to personal liberty enshrined under Article 21 of the Constitution. Reproductive rights include both the right to procreate and the right not to procreate. While this case is not about surrogacy, it is important to understand the concept of reproductive rights of women through this case.

In another important case decided recently, the significant judgment was delivered in Vijaya Kumari S. v. Union of India, 2025 INSC 1209. In this case, the Supreme Court considered the restrictions regarding the age limit contained in Section 4(iii)(c)(I) of the 2021 Act. In the judgment, the Court held that age restrictions provided in Section 4(iii)(c)(I) of the 2021 Act shall not apply to a couple who entered into the surrogacy agreement before the enactment of the 2021 Act and had already formed frozen embryos. The Court ruled that such couples have a constitutionally protected right under Article 21 to continue the process.

RECENT DEVELOPMENTS AND LEGAL CHALLENGES

One of the issues arising under the Act is the utilisation of donor gametes. The 2023 amendments to the Surrogacy Rules barred intending couples from the utilisation of donated eggs or sperm cells. It was thus difficult for intending couples with a partner having a disease that necessitated donor gametes.

To counter this issue, the Central Government enacted the Surrogacy (Regulation) Amendment Rules, 2024. The Amendment allows the use of donor gametes only if the District Medical Board certifies that there is a need for such treatment due to a particular medical condition of either the husband or wife. However, not less than one gamete of the intending couple is necessary. In case of a single intending woman being widowed or divorced, she should still use her eggs and donor sperm.

However, despite this amendment, some concerns are left untouched. Restrictions on commercial or compensated surrogacy restrict the financial freedom of the surrogate mother while taking into account the physical, emotional and medical risks of pregnancy. Furthermore, the requirements to be eligible exclude several categories of people, among which are unmarried couples and single men.

There is yet another matter, the issue of the difference between reproductive freedom and the right to use another person’s body. Although the former is protected under Article 21, the latter deals with another woman’s health, dignity, and consent, all of which must be considered. This implies that the legislation must consider not only the rights of the intending parents but also those of the surrogates and their children.

WAY FORWARD

Nevertheless, the laws that pertain to surrogate pregnancies need to ensure that everyone remains safe without infringing on the rights of the people in terms of reproductive freedom. Periodic revisions of the eligibility criteria for individuals willing to undergo the surrogacy process should take place. Especially, one must be ensured that the requirements placed on the age and marital status of the individuals are fair and do not rob them of their chance.

Apart from this, several steps should be taken to guarantee adequate health protection, psychological help, proper insurance, and financial compensation for the surrogate mother. Lastly, the process of regulation itself must be simplified and clarified. Future parents need to get the medical certificates in due time, and the rules for resolving all issues regarding citizenship, legal status, and guardianship of the children conceived by means of surrogacy should be developed.

In summary, there needs to be an effective legal structure that will guarantee that women do not become victims of exploitation in any manner possible without interfering with their reproductive rights. This will make sure that surrogacy is a legitimate process of reproduction. 

CONCLUSION

The legalisation of surrogacy in India is a great milestone not only concerning the regulation of reproductive technologies but also in terms of protecting the rights of surrogate mothers and children who are conceived with the help of surrogacy. The Surrogacy (Regulation) Act of 2021 provides the possibility to conduct the procedure altruistically while prohibiting its commercialisation. Still, the requirements concerning the eligible candidates, their marital status and finances present some issues in relation to equality and reproductive rights. Thus, the law should create a proper balance between the need to prevent the exploitation of women and respect for people’s reproductive rights. To put it simply, surrogacy is a challenge to tackle from the point of view of medicine and human rights.

 

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WRITTEN BY: DEBARTAI CHATTERJEE 

 

References:

by Primelegal Team

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