Surrogacy has become a ray of hope for many childless couples. However, with evolving ethical, medical, and legal complexities, surrogacy laws in India have undergone major transformations. This article explores everything couples need to know before opting for surrogacy in India drawing from current Acts, regulations, and sections, while ensuring the content is valuable for both law students and clients. With surrogacy now highly regulated, understanding the applicable laws, eligibility criteria, and legal safeguards is essential. This guide is especially relevant for those seeking advice from family lawyers in Chandigarh or consulting high court advocates for family matters.
Understanding the Legal Framework Governing Surrogacy in India
The Surrogacy (Regulation) Act, 2021
India’s surrogacy law is primarily governed by The Surrogacy (Regulation) Act, 2021, which came into force in January 2022. The Act regulates altruistic surrogacy and prohibits commercial surrogacy. Its objectives are to prevent exploitation of surrogate mothers, safeguard the rights of children born through surrogacy, and lay down the legal process for intending couples.
Key definitions under the Act:
- Section 2(f): Defines “altruistic surrogacy”
- Section 2(g): Defines “commercial surrogacy”
- Section 2(r): Defines “intending couple”
Only altruistic surrogacy is allowed, and commercial surrogacy is completely banned under Section 4(ii)(a).
Key Provisions and Conditions
To regulate the surrogacy process, the Act imposes the following conditions:
- The surrogate must be a close relative of the intending couple (not defined precisely, leading to interpretational issues)
- The surrogate must be married and have at least one biological child of her own
- A woman can only act as a surrogate once in her lifetime
- The intending couple must be Indian citizens, married for at least five years, and must not have any biological/adopted/previously surrogated children (exceptions apply for children with disabilities or life-threatening disorders)
These conditions are outlined under Section 4 read with Rule 7 of the Surrogacy Rules, 2022.
Medical and Legal Approvals Required
Certificate of Eligibility and Certificate of Essentiality
Before proceeding with surrogacy, couples must obtain two certificates:
- Certificate of Essentiality
As per Section 4(iii)(a) of the Act, this is issued after:- Medical indication for surrogacy from a District Medical Board
- An order from a Magistrate’s Court permitting surrogacy
- Insurance coverage for the surrogate mother for 36 months
- Certificate of Eligibility (for intending couple)
Issued after verification that:- The couple is married for 5+ years
- Woman is aged 23–50; man is aged 26–55
- They are medically unable to conceive
Surrogacy clinics must be registered under Section 10. Performing surrogacy in an unregistered facility is a punishable offence.
Rights of the Surrogate Mother and Child
Surrogate Mother’s Rights
- The surrogate mother must give written informed consent
- She cannot be paid except for medical expenses and insurance, ensuring it’s altruistic
- Surrogates can withdraw consent before embryo implantation, as per Section 6
- She has the right to free legal aid and counseling, especially if disputes arise
Rights of the Child
Children born via surrogacy enjoy all rights as a natural-born child under Indian law:
- Legal recognition and citizenship under Section 8
- Right to inheritance, family name, and maintenance
Additionally, no sex-selection is allowed during the process in line with the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994.
Legal Challenges and Interpretations
Commercial Surrogacy Ban
Commercial surrogacy is banned under Section 4(ii)(a). Violation leads to:
- Imprisonment of up to 10 years
- Fine up to ₹10 lakh
- Cancellation of registration of medical clinics
However, critics argue that the definition of “altruistic” is too narrow and discriminates against single parents and the LGBTQ+ community.
Constitutional Challenges
Multiple petitions are pending before the Supreme Court and High Courts, challenging:
- The ban on single parents
- The exclusion of live-in couples and LGBTQ+ partners
- Restriction to close relatives only
High court lawyers in Chandigarh have been active in public interest litigations questioning these restrictions.
Other Applicable Laws
In addition to the Surrogacy (Regulation) Act, 2021, couples must also consider the following:
- The Assisted Reproductive Technology (Regulation) Act, 2021: Regulates IVF and ART clinics
- Indian Contract Act, 1872: Governs enforceability of agreements (surrogacy contracts have limited value now due to altruistic limitation)
- Indian Penal Code, 1860: Penal provisions in case of fraud, misrepresentation, or forced surrogacy
- Information Technology Act, 2000: Data privacy of medical records
- Hindu Adoption and Maintenance Act, 1956: May apply in disputed parentage issues
Ethical and Social Concerns
Surrogacy as Women’s Empowerment vs. Exploitation
Though altruistic surrogacy aims to prevent exploitation, critics argue it ignores women’s autonomy and economic rights. By restricting compensation, the law removes a source of livelihood for many poor women.
Rights of LGBTQ+ Couples and Single Parents
Currently, only heterosexual married couples can opt for surrogacy. This exclusion has been widely criticized as discriminatory and is under judicial scrutiny.
Surrogacy and NRIs
Only Indian citizens can opt for surrogacy in India. NRIs or Overseas Citizens of India (OCIs) are not eligible, leading many to explore options abroad. This is governed under the Citizenship Act, 1955 and related Ministry of Home Affairs guidelines.
Documentation Checklist for Couples
- Marriage certificate (minimum 5 years)
- Medical infertility certificate from a District Medical Board
- Age proof (Aadhar, PAN)
- Court approval or Magistrate’s Order
- Surrogate’s consent affidavit
- Surrogate’s marriage certificate and childbirth records
- Surrogacy clinic registration certificate
- Insurance policy for surrogate (3 years minimum)
- Birth certificate application post-delivery
Common Pitfalls to Avoid
- Engaging in commercial arrangements
- Using unregistered IVF clinics
- Proceeding without a court order
- Ignoring age or marital status criteria
- Failing to insure the surrogate
Legal experts strongly advise compliance with all requirements, as violations can lead to criminal prosecution, disqualification from future surrogacy, and legal invalidation of the parent-child relationship.
Surrogacy in India is no longer an unregulated sector. With the Surrogacy (Regulation) Act, 2021 and ART Act in force, the process has become legal, medical, and ethically defined. Couples must follow the law rigorously, prepare accurate documentation, and understand the rights of the surrogate and child.
Given the complex legal processes involved, engaging experienced family lawyers in Chandigarh, high court advocates in Chandigarh, or family advocates in Chandigarh can ensure smooth and lawful completion of the surrogacy journey. Whether you are a student exploring this area or a couple planning to begin the process, understanding the law is the first essential step.
FAQs on Surrogacy Laws in India
Q1: Can single parents opt for surrogacy in India?
No. As per the Surrogacy (Regulation) Act, 2021, only heterosexual married couples are eligible. This restriction is being challenged in courts.
Q2: What is the punishment for illegal surrogacy?
Engaging in commercial or unregulated surrogacy can lead to up to 10 years’ imprisonment and fines up to ₹10 lakh under Section 38 of the Act.
Q3: Do surrogacy agreements have legal value in India?
No. Since only altruistic surrogacy is permitted, commercial surrogacy contracts are void. However, written consent and documentation are still required for court approvals.
Q4: Is court approval mandatory for surrogacy?
Yes. Intending couples must get approval from a Magistrate’s Court and submit the required documentation to obtain a Certificate of Essentiality.
Q5: Can the surrogate mother change her mind?
Yes. The surrogate mother has the right to withdraw consent before embryo implantation, according to Section 6 of the Act.