Is Surrogacy Legal in India? A Comprehensive Legal Analysis

Introduction

Surrogacy represents one of the most complex intersections of law, ethics, medicine, and human rights in modern society. As an arrangement where a woman agrees to bear a child for another person or couple, surrogacy has emerged as a significant path to parenthood for those who cannot conceive naturally. However, the legal landscape governing this practice varies dramatically across the globe, with India having witnessed particularly profound regulatory shifts over the past two decades.

India's journey with surrogacy has been marked by radical transformation—from being a global hub for commercial surrogacy to implementing one of the world's most restrictive regulatory frameworks. These changes reflect evolving societal perspectives on reproductive rights, exploitation concerns, and the ethical dimensions of creating families through assisted reproductive technologies.

This comprehensive article delves into the intricate legal framework of surrogacy in India, examining its historical evolution, current status, ethical implications, and future directions. Whether you are a legal professional, a medical practitioner, or someone considering surrogacy as a path to parenthood, understanding India's legal position on surrogacy is essential for navigating this complex terrain.

Historical Evolution of Surrogacy Laws in India

The Unregulated Era (Pre-2002)

Before 2002, surrogacy in India existed in a legal vacuum. With no specific legislation addressing the practice, arrangements were governed by contract law principles, leaving significant ambiguity regarding the rights and responsibilities of the parties involved. This legal ambiguity did not prevent surrogacy arrangements but created substantial uncertainty regarding their enforceability and the legal status of children born through such arrangements.

The ICMR Guidelines (2002-2016)

The first meaningful attempt to regulate surrogacy came in 2002 when the Indian Council of Medical Research (ICMR) issued "National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India." These guidelines, while not legally binding, established the first framework for surrogacy practices, addressing:

• Medical procedures for assisted reproductive technologies
• Consent requirements for all parties
• Compensation parameters for surrogate mothers
• Documentation standards for establishing legal parentage

These guidelines positioned India as a permissive jurisdiction for surrogacy arrangements, including commercial surrogacy where surrogate mothers received payment beyond reasonable expenses. Combined with high-quality medical facilities, relatively low costs, and limited regulation, these factors transformed India into a global destination for surrogacy, particularly commercial surrogacy.

The landmark case of Baby Manji Yamada v. Union of India (2008) highlighted the legal complexities arising from this regulatory approach. In this case, a Japanese couple had commissioned a surrogacy in India but divorced before the child's birth. When the intended mother no longer wanted the child and Indian law did not permit a single father to adopt, the child's citizenship and parentage remained in limbo. The Supreme Court ultimately allowed the paternal grandmother to take custody, but the case underscored the urgent need for comprehensive legislation.

Regulatory Tightening (2012-2016)

Growing concerns about exploitation, commodification of women's bodies, and potential trafficking led to significant policy shifts beginning in 2012. The Ministry of Home Affairs issued directives restricting surrogacy services to:

• Heterosexual married couples
• From countries where surrogacy was legal
• Who could obtain medical visas specifically for surrogacy

In 2015, further restrictions barred foreign nationals from commissioning surrogacies in India entirely, effectively ending India's status as a global surrogacy destination. These changes marked a decisive shift from a permissive approach to a more restrictive regulatory stance.

The Legislative Journey

The path to comprehensive surrogacy legislation has been lengthy and complex:

• The Assisted Reproductive Technology (Regulation) Bill, 2008: The first legislative attempt, which never passed.
• The Assisted Reproductive Technology (Regulation) Bill, 2010: A revised version that also failed to become law.
• The Surrogacy (Regulation) Bill, 2016: Proposed a complete ban on commercial surrogacy, allowing only altruistic surrogacy for Indian married couples with infertility issues.
• The Surrogacy (Regulation) Bill, 2019: An updated version passed by the Lok Sabha (lower house) but lapsed.
• The Surrogacy (Regulation) Act, 2021: Finally enacted as law, establishing the current legal framework.

This protracted legislative process reflects the deep ethical, social, and political debates surrounding surrogacy in Indian society.

Current Legal Framework: The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, along with the Assisted Reproductive Technology (Regulation) Act, 2021, now governs surrogacy arrangements in India. This legislative framework represents one of the most comprehensive and restrictive approaches to surrogacy regulation globally.

Key Provisions

Types of Surrogacy Permitted and Prohibited

The Act makes a clear distinction between different forms of surrogacy:

• Commercial Surrogacy: Explicitly prohibited, with criminal penalties for violations.
• Altruistic Surrogacy: The only permitted form, where the surrogate mother receives no compensation beyond medical expenses and insurance coverage.
• Gestational Surrogacy: The only permitted method, requiring the surrogate not to provide her eggs (no genetic connection to the child).

Eligibility Criteria for Intended Parents

The Act establishes strict eligibility requirements for those who can commission surrogacy arrangements:

• Indian Citizens: Foreign nationals, Non-Resident Indians (NRIs), and Persons of Indian Origin (PIOs) cannot commission surrogacy in India.
• Married Couples: The couple must have been married for at least five years.
• Age Requirements: The woman must be between 23-50 years and the man between 26-55 years.
• Medical Necessity: There must be a certified medical indication for surrogacy:
• Proven infertility of either or both members of the couple
• Conditions making pregnancy dangerous or impossible for the intended mother

The Act notably excludes single individuals, unmarried couples, same-sex couples, and those who already have biological or adopted children (except if the existing child has mental or physical disabilities or a life-threatening disorder).

Eligibility Criteria for Surrogate Mothers

The surrogate mother must:

• Be an "ever-married" woman with her child
• Be between 25-35 years of age
• Be a close relative of the intending couple
• Be medically and psychologically fit
• Has no history of repeated surrogacy (can act as a surrogate only once in her lifetime)
• Possess a certificate of medical and psychological fitness

The "close relative" requirement is particularly significant, effectively establishing a "familial surrogacy" model rather than allowing surrogacy arrangements between unrelated parties.

Regulatory Infrastructure

The Act establishes a multi-tiered regulatory framework:

• National Surrogacy Board: At the central level, responsible for advising the government on policy matters and overseeing implementation
• State Surrogacy Boards: At the state level, responsible for monitoring and regulating surrogacy activities within their jurisdiction
• Appropriate Authorities: Responsible for registering and regulating surrogacy clinics

Registration Requirements

All surrogacy clinics must be:

• Registered under the Act
• Meeting specified standards of facilities and personnel
• Maintaining detailed records of all surrogacy procedures

Legal Protections

The Act includes significant protections for surrogate mothers and children born through surrogacy:

• Mandatory Insurance: The intended parents must secure insurance coverage for the surrogate mother.
• Legal Parentage: Children born through surrogacy have the same rights as biological children of the intending couple.
• Prohibition of Sex Selection: The Act explicitly prohibits sex selection in surrogacy arrangements.
• Abortion Rights: The surrogate retains the right to make decisions about her body, including termination, subject to general abortion laws.

Penalties for Violations

The Act includes robust penalties for violations:

• Commercial Surrogacy: Imprisonment up to 10 years and fines up to ₹10 lakhs
• Exploitation of Surrogate Mothers: Imprisonment up to 10 years and fines up to ₹10 lakhs
• Advertising Commercial Surrogacy: Imprisonment up to 5 years and fines up to ₹10 lakhs
• Abandonment of Surrogate Child: Imprisonment up to 10 years and fines up to ₹10 lakhs

The ART (Regulation) Act, 2021: A Complementary Framework

The Assisted Reproductive Technology (Regulation) Act, 2021, works in conjunction with the Surrogacy Act to regulate the broader field of reproductive technologies, including:

• In vitro fertilization (IVF)
• Intracytoplasmic sperm injection (ICSI)
• Gamete donation
• Embryo donation and transfer

This dual legislative approach ensures comprehensive regulation of all aspects of assisted reproduction, including the medical procedures essential for surrogacy arrangements.

Legal Challenges to the Current Framework

The restrictive provisions of the Surrogacy (Regulation) Act, 2021, have faced legal challenges on constitutional grounds. Several petitions have been filed in the Supreme Court and High Courts challenging various aspects of the legislation.

Constitutional Questions

These legal challenges primarily invoke fundamental rights guaranteed under the Indian Constitution:

• Article 14 (Right to Equality): Arguments that restrictions based on marital status, sexual orientation, and nationality create arbitrary classifications without a rational nexus to the Act's objectives
• Article 19 (Freedom of Profession): Questions regarding prohibitions on commercial surrogacy as potential violations of professional freedoms
• Article 21 (Right to Life and Personal Liberty): Claims that reproductive autonomy falls within the expanded interpretation of personal liberty

Key Legal Challenges

Petition Challenging Exclusion of Single Parents and LGBTQ+ Individuals

A petition filed in the Supreme Court has challenged the constitutional validity of provisions restricting surrogacy to married heterosexual couples. The petitioners argue that:

• The exclusion of single individuals, unmarried couples, and LGBTQ+ persons violates their fundamental rights
• Such restrictions arbitrarily deny certain citizens access to surrogacy without reasonable justification
• The restrictions are inconsistent with other laws, such as adoption regulations, which permit single and LGBTQ+ individuals to adopt

Challenge to "Close Relative" Requirement

Another significant challenge targets the provision requiring the surrogate mother to be a "close relative" of the intending couple. Arguments include:

• This requirement is unduly restrictive and practically unfeasible for many couples
• It potentially increases vulnerability to familial coercion
• It creates an arbitrary distinction between those who have willing close relatives and those who do not

The Pending Legal Status

As of early 2023, these constitutional challenges remain pending before the courts. Their outcomes will significantly shape the future of surrogacy regulation in India, potentially expanding access if certain provisions are struck down or confirming the restrictive approach if upheld.

Procedural Aspects: The Surrogacy Journey Under Current Law

For Indian couples considering surrogacy within the current legal framework, the process involves several complex steps and strict compliance requirements.

Pre-Arrangement Requirements

Medical Certification

Before initiating a surrogacy arrangement, the intending couple must obtain:

• A certificate of proven infertility from a District Medical Board
• A recommendation for surrogacy from a qualified medical practitioner

Surrogate Selection

The intending couple must identify a suitable surrogate who:

• Is a close relative
• Meets all eligibility criteria
• Is willing to participate altruistically

Counseling Requirements

All parties must undergo comprehensive counseling covering:

• Medical, legal, and psychological implications
• Potential risks and complications
• Responsibilities and expectations

Legal Documentation

The surrogacy arrangement requires extensive documentation:

• Certificate of Essentiality: Issued by the appropriate authority confirming:
• Medical indication for surrogacy
• Fulfillment of all eligibility conditions
• Availability of a suitable surrogate
• Certificate of Eligibility: For both the intending couple and the surrogate mother
• Surrogacy Agreement: A legally binding document covering:
• Medical procedures and responsibilities
• Financial arrangements for medical expenses
• Insurance coverage for the surrogate mother
• Legal parentage of the resulting child

This agreement must be notarized and witnessed as prescribed in the regulations.

Medical Procedures

The medical aspects must strictly adhere to ART Act guidelines:

• Only gestational surrogacy is permitted (surrogate not genetically related to child)
• Gametes must come from at least one member of the intending couple
• All procedures must be performed at registered surrogacy clinics
• Comprehensive medical records must be maintained

Post-Birth Legal Process

Following the birth of the child:

• The birth certificate lists the intending couple as parents
• The surrogate has no parental rights or responsibilities
• The child is legally considered the legitimate child of the intending couple

Comparative Analysis: Indian Framework vs. Global Approaches

India's approach to surrogacy regulation exists within a diverse global landscape, ranging from highly permissive to completely prohibitive jurisdictions.

Prohibitive Jurisdictions

Countries like France, Germany, Italy, Spain, and China prohibit all forms of surrogacy. Their objections typically center on:

• Ethical concerns about the commercialization of reproduction
• Religious perspectives on the sanctity of natural procreation
• Concerns about exploitation of vulnerable women
• Views on the commodification of children

Regulated Commercial Models

Countries like Russia, Ukraine, and some U.S. states permit commercial surrogacy under varying degrees of regulation:

• United States: Regulation varies by state, with California, Nevada, and Illinois having established clear legal frameworks supporting commercial surrogacy
• Russia: Permits commercial surrogacy for married heterosexual couples and single women
• Ukraine: Allows commercial surrogacy for foreign heterosexual married couples, with legal parentage established pre-birth

Altruistic-Only Models

Countries including Canada, the United Kingdom, Australia, and now India permit only altruistic surrogacy:

• Canada: Prohibits payment beyond reasonable expenses but allows non-relatives to serve as surrogates
• United Kingdom: Permits altruistic surrogacy with post-birth parental orders to transfer legal parentage
• Australia: Regulation varies by state/territory but generally allows altruistic surrogacy while prohibiting commercial arrangements

India's Unique Position

India's current framework stands out for its combination of restrictions:

• The "close relative" requirement is rare globally
• The five-year marriage requirement is among the longest internationally
• The prohibition on surrogacy for those with existing children is uncommon
• The exclusion of single individuals and same-sex couples aligns with more conservative jurisdictions

This comparative perspective highlights how India has shifted from one of the world's most permissive jurisdictions to one of the most restrictive, creating a unique regulatory model that prioritizes familial ties and traditional family structures.

Ethical Dimensions of Surrogacy Regulation in India

The legal framework governing surrogacy in India reflects complex ethical considerations that have shaped policy development.

Ethical Concerns Driving Restrictions

Exploitation and Commodification

A primary motivation behind India's restrictive approach is addressing concerns about:

• Economic exploitation of economically vulnerable women
• Commodification of women's reproductive capacities
• The potential for reproductive trafficking
• Creation of a "wombs for rent" industry targeting disadvantaged populations

The ban on commercial surrogacy directly addresses these concerns by removing financial incentives, while the "close relative" requirement attempts to ensure that surrogacy decisions are based on familial bonds rather than economic necessity.

Social Hierarchies and Power Dynamics

India's socioeconomic realities created particular concerns about:

• Class disparities between commissioning parents and surrogates
• Potential coercion within hierarchical social structures
• Limited agency and informed consent among economically vulnerable women
• Global power imbalances in international surrogacy arrangements (addressed through the ban on surrogacy for foreigners)

Medical Ethics

The regulatory framework also addresses medical ethics concerns:

• Ensuring proper informed consent processes
• Preventing exploitation of women's health
• Establishing accountability for fertility clinics
• Standardizing medical protocols and safety measures

Competing Ethical Perspectives

Reproductive Autonomy

Critics of the restrictive framework argue that it unduly limits:

• Women's agency over their bodies and reproductive capacity
• Individuals' rights to form families through available technologies
• Surrogate mothers' freedom to enter compensated arrangements
• Reproductive options for those excluded from the framework

Access and Equality

The current restrictions raise ethical questions about:

• Discrimination based on marital status and sexual orientation
• Creation of unequal access to reproductive technologies
• Potential infringement on reproductive rights
• Paternalistic limitations on women's economic choices

Practical Ethical Challenges

The "close relative" requirement creates its ethical complexities:

• Potential for familial coercion or emotional pressure
• Complicated family dynamics following surrogacy arrangements
• Limited pool of potential surrogates for those without willing relatives
• Complex power dynamics within family structures

These competing ethical perspectives illustrate the fundamental tensions in surrogacy regulation between protecting against exploitation and respecting individual autonomy—a balance that different jurisdictions strike in vastly different ways.

Case Studies: Landmark Legal Precedents

While the current legislative framework is relatively new, several landmark cases have shaped India's legal approach to surrogacy over the years.

Baby Manji Yamada v. Union of India (2008)

Case Facts

• Japanese couple Ikufumi and Yuki Yamada commissioned a gestational surrogacy in India.
• The couple divorced before birth, and the intended mother no longer wanted the child.d
• The surrogate also declined to take custody
• The baby faced citizenship complications and parentage uncertainty

Legal Issues

• Legal parentage in the absence of comprehensive legislation
• Citizenship and passport rights of surrogate children
• Rights of commissioning fathers in surrogacy arrangements

Ruling and Impact

The Supreme Court permitted the baby's paternal grandmother to take custody temporarily while legal issues were resolved. This case highlighted the urgent need for comprehensive legislation and influenced subsequent regulatory efforts.

Jan Balaz v. Anand Municipality (2009)

Case FactA s

• German couple commissioned twins through surrogacy in Gujarat
• Germany did not recognize surrogacy, refusing citizenship to the children
• India initially refused to issue passports as they were not considered Indian citizens

Legal Issues

• Nationality and citizenship of surrogate children
• Recognition of foreign commissioning parents
• Conflict of laws in international surrogacy

Ruling and Impact

The Gujarat High Court recognized the surrogate mother as the legal mother for citizenship, granting Indian citizenship to the children. This case directly influenced the subsequent restrictions on international surrogacy arrangements.

Jayashree Wad v. Union of India (2015)

Case Facts

• Public interest litigation arguing commercial surrogacy exploited vulnerable women.
• Challenged the absence of comprehensive regulation
• Called for restrictions on commercial surrogacy

Legal Issues

• Constitutionality of commercial surrogacy
• Need for legislative intervention
• Protection of surrogate mothers' rights

Ruling and Impact

While this case was pending, the government issued guidelines restricting foreign nationals from accessing surrogacy in India, and eventually developed the legislative framework that led to the 2021 Acts.

Cross-Jurisdictional Complications

Recognition of Indian Surrogacy Arrangements Abroad

For Indian citizens who complete surrogacy arrangements domestically but reside internationally, challenges include:

• Immigration Issues: Countries that don't recognize surrogacy may not grant citizenship or immigration rights to children born through surrogacy
• Parentage Recognition: Legal parentage established in India may not be automatically recognized in jurisdictions that prohibit surrogacy
• Documentation Challenges: Birth certificates listing commissioning parents may not be accepted in some countries

International Private Law Considerations

When surrogacy arrangements have international elements, complex legal issues arise:

• Conflict of Laws: Different legal approaches between countries create uncertainties
• Jurisdiction Questions: Determining which country's laws apply to various aspects of the arrangement
• Recognition and Enforcement: Whether court orders from one jurisdiction will be recognized in another

Statelessness Risks

In the most problematic scenarios, children born through surrogacy may face:

• Citizenship Limbo: Neither the surrogate's country nor the commissioning parents' country recognizes the child
• Documentation Barriers: Inability to obtain passports or travel documents
• Legal Parentage Uncertainty: Unclear legal relationships affecting inheritance, custody, and other rights

These cross-jurisdictional complications underscore the importance of obtaining specialized legal advice when surrogacy arrangements involve multiple jurisdictions, even under the current restrictive framework in India.

Practical Implications for Legal Professionals

Advising Clients on Surrogacy Options

Legal professionals advising clients on family formation through surrogacy must navigate complex considerations:

Eligibility Assessment

• Thorough evaluation of whether clients meet statutory requirements
• Documentation of medical necessity for surrogacy
• Verification of marriage duration and other eligibility criteria

Alternative Options Counseling

For clients who don't meet India's strict requirements, attorneys should discuss:

• International surrogacy options where legally available
• Adoption alternatives
• Other assisted reproductive technologies that may be accessible

Risk Analysis

Comprehensive risk assessment covering:

• Legal uncertainties in the new regulatory framework
• Potential constitutional challenges that might affect arrangements
• Family dynamics specific to "close relative" surrogacy

Drafting Surrogacy Agreements

While commercial surrogacy is prohibited, legal documentation remains crucial:

Essential Elements

• Clear delineation of medical expenses covered
• Insurance provisions for the surrogate
• Medical procedure consent and decision-making protocols
• Confidentiality provisions
• Dispute resolution mechanisms

Regulatory Compliance

• Ensuring all statutory requirements are met
• Obtaining necessary certifications and approvals
• Maintaining documentation for regulatory inspections

Anticipating Complications

• Provisions for medical complications
• Procedures for multiple births
• Contingencies for prenatal diagnoses of medical conditions

Navigating Regulatory Requirements

Legal professionals must guide clients through the complex regulatory landscape:

Appropriate Authority Interactions

• Preparing applications for certificates of eligibility
• Representing clients before regulatory bodies
• Addressing regulatory questions or concerns

Clinic Selection Guidance

• Verifying registration and compliance status
• Reviewing clinic protocols and success rates
• Assessing clinic experience with regulatory requirements

Documentation Management

• Organizing and submitting required documentation
• Ensuring legal completeness of all forms
• Maintaining records for potential future legal needs

Future Directions: Emerging Trends and Potential Changes

Pending Constitutional Challenges

The outcome of ongoing constitutional challenges will significantly shape the future landscape:

• If the "close relative" requirement is struck down, it could expand access while maintaining the altruistic model
• Challenges to exclusions based on marital status or sexual orientation could broaden eligibility
• Rejection of these challenges would cement the current restrictive approach

Legislative Refinement

As implementation proceeds, potential legislative refinements may address:

• Clarification of the "close relative" definition and verification methods
• Procedural details for regulatory bodies
• Coordination mechanisms between ART and surrogacy regulatory frameworks
• Timeframes for processing applications and approvals

Technological Developments

Emerging reproductive technologies continue to raise new legal questions:

• Mitochondrial replacement therapy creating "three-parent" children
• Advances in artificial wombs are potentially changing the surrogacy landscape
• Genetic editing technologies are raising new ethical and legal considerations

Global Harmonization Efforts

International efforts to address cross-border surrogacy complications may influence India's approach:

• The Hague Conference on Private International Law works on international surrogacy regulation
• Bilateral agreements addressing citizenship and parentage
• Development of international best practices and ethical standards

Ethical Best Practices for Surrogacy Arrangements

Despite the restrictive legal framework, ethical considerations remain paramount in surrogacy arrangements. Legal professionals should advocate for:

Comprehensive Counseling

All parties should receive thorough counseling addressing:

• Emotional implications for all family members
• Relationship dynamics between surrogate and intended parents
• Psychological support throughout the process
• Future relationship expectations and boundaries

Informed Consent

True informed consent requires:

• Information provided in accessible language
• Separate legal representation for surrogate and intended parents
• Absence of coercion, particularly given family relationships
• Ongoing consent processes rather than one-time documentation

Child-Centered Approach

Prioritizing the resulting child's interests through:

• Planning for disclosure about origins