For many couples and individuals, surrogacy is the path to the family they have longed for. But since 2021, surrogacy in India is tightly regulated, and a single mistake in eligibility, certification or paperwork can derail the entire journey. Advocate Preeti JD, Associates and Solicitors guides intending parents through the legal side of surrogacy, from eligibility and agreements to certificates and the child’s legal status, fully in line with the current law. With more than 17 years in family law, we make sure your path to parenthood is legally secure.
Family law is not just what we do. It is all we do.
What Is Surrogacy?
Surrogacy is an arrangement in which a woman carries and gives birth to a child for an intending couple or intending woman, with the intention of handing over the child after birth. In India, only gestational, altruistic surrogacy is permitted, where the embryo is implanted in the surrogate and she receives no commercial payment.
Is Surrogacy Legal in India?
Yes, but only altruistic surrogacy is legal. Commercial surrogacy, where a surrogate is paid a fee beyond her genuine medical expenses and insurance, is banned. The law is designed to prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy.
Laws Governing Surrogacy in India
Surrogacy is regulated by a framework of laws and rules:
- Surrogacy (Regulation) Act, 2021: the principal law, in force since 25 January 2022.
- Surrogacy (Regulation) Rules, 2022: the detailed operating rules.
- Surrogacy (Regulation) Amendment Rules, 2024: which, from February 2024, allow the use of one donor gamete in certified medical cases.
- Assisted Reproductive Technology (Regulation) Act, 2021: which regulates ART clinics and banks that support the process.
Because this area continues to evolve, including through cases pending before the Supreme Court, current legal advice is essential before you begin.
Altruistic vs Commercial Surrogacy
The distinction is central to Indian law:
- Altruistic surrogacy is permitted. The surrogate receives only her medical expenses and a mandated insurance cover, with no profit or fee.
- Commercial surrogacy is prohibited. Paying a surrogate beyond expenses, or running surrogacy as a trade, is a punishable offence.
Who Is Eligible for Surrogacy?
The Act sets out strict eligibility:
- Intending couple: a legally married Indian man and woman, with the woman aged between 23 and 50 and the man between 26 and 55, who hold the required medical certification of need.
- Single woman: a widow or divorcee aged between 35 and 45.
- No surviving child: the intending couple should generally not have a living child, with narrow exceptions where an existing child is mentally or physically challenged or has a life-threatening disorder.
Eligibility must be confirmed through a certificate of essentiality and a certificate of eligibility from the appropriate authority.
Who Can Be a Surrogate Mother?
A surrogate must be a willing, married woman aged between 25 and 35 who has a child of her own. She can act as a surrogate only once in her lifetime, must be medically and psychologically fit, and must give her informed written consent. The intending parents must arrange insurance cover for the surrogate for 36 months.
Use of Donor Gametes
This is the most important recent change. Under the original 2021 law, both the egg and the sperm had to come from the intending couple, and donor gametes were not allowed. The 2024 Amendment Rules now permit the use of one donor gamete, either egg or sperm, where a District Medical Board certifies a medical necessity, such as a condition that prevents a partner from producing a viable gamete. The child must still be genetically related to at least one intending parent, so using both a donor egg and donor sperm remains prohibited.
Who Is Not Eligible
The current law excludes several groups, including single men, unmarried couples, same-sex couples and partners in live-in relationships. Couples with secondary infertility, who already have a living child, are also largely excluded. Several of these restrictions are being challenged before the Supreme Court, so the position may change in future.
Surrogacy for NRIs and OCIs
NRIs and Overseas Citizens of India may be eligible for surrogacy in India subject to conditions, while foreign nationals are generally not permitted. Because the eligibility and documentation requirements for NRIs are nuanced and evolving, it is important to take specific legal advice before starting the process.
The Surrogacy Process Step by Step
While details vary, the legal journey generally follows this order:
- Approach a surrogacy clinic registered under the appropriate Board.
- Obtain medical certification of the need for surrogacy.
- Secure the certificate of essentiality and certificate of eligibility from the appropriate authority.
- Obtain District Medical Board certification where a donor gamete is to be used.
- Execute a proper surrogacy agreement and arrange the surrogate’s insurance.
- Complete the medical procedure at the registered clinic.
- Establish the child’s legal parentage and documentation after birth.
Legal Rights of the Child and the Surrogate
A child born through lawful surrogacy is deemed to be the biological child of the intending couple or intending woman and is entitled to all the rights of a natural-born child. The surrogate has no parental claim over the child. To fully secure the child’s future, intending parents often align this with estate planning, such as a will or gift deed.
Prohibitions and Penalties
The Act prohibits commercial surrogacy, abandonment of the child, sex selection, exploitation of the surrogate, and the sale or import of human embryos or gametes for surrogacy. These offences carry serious consequences, including imprisonment of up to ten years and heavy fines for those who undertake or facilitate them.
Surrogacy vs Adoption
Surrogacy is not the only route to parenthood. For some families, adoption is a simpler and equally fulfilling path. We help you understand both options and choose the one that best suits your circumstances.
How Advocate Preeti JD Helps
- Eligibility check: We assess whether you qualify under the current law before you invest time and emotion.
- Documentation and certificates: We help obtain the essentiality and eligibility certificates and other approvals.
- Watertight agreements: We draft compliant surrogacy agreements that protect all parties and the child.
- Compliance and parentage: We ensure the process follows the Act and that the child’s legal parentage is properly secured.
- Honest, current advice: Given how fast this area is changing, we keep you informed of the latest legal position, including matters before the Supreme Court.
Why Choose Advocate Preeti JD
- Over 17 years of focused family law practice.
- A dedicated team of more than 20 professionals.
- Up-to-date command of the Surrogacy Act, the 2022 Rules and the 2024 amendments.
- Sensitive, confidential handling of a deeply personal journey.
- Membership of the Supreme Court Bar Association, Punjab and Haryana High Court Bar Association, Gurugram Bar Association and the Indian National Bar Association.
- A client-first approach that is confidential, honest and result-oriented.
Book a Consultation
Surrogacy law is strict and constantly evolving. Before you begin, make sure your journey is legally sound. Speak to us for clear, current guidance.
Advocate Preeti JD, Associates and Solicitors Chamber No. 149, C-Block, District and Sessions Court, Gurugram Phone: +91 8800383046, +91 8587025281 Email: mailadvpreeti@gmail.com
Book your appointment for a confidential consultation today.
Frequently Asked Questions on Surrogacy
Is surrogacy legal in India?
Yes, but only altruistic surrogacy is legal in India. Commercial surrogacy, where the surrogate is paid beyond medical expenses and insurance, is banned under the Surrogacy (Regulation) Act, 2021.
Which law governs surrogacy in India?
Surrogacy is governed by the Surrogacy (Regulation) Act, 2021, the Surrogacy (Regulation) Rules, 2022, and the 2024 Amendment Rules, read with the Assisted Reproductive Technology (Regulation) Act, 2021.
What is the difference between altruistic and commercial surrogacy?
In altruistic surrogacy the surrogate receives only medical expenses and insurance, with no profit. Commercial surrogacy, where she is paid a fee, is illegal in India. Only altruistic surrogacy is permitted.
Who is eligible to opt for surrogacy?
A legally married Indian couple, the woman aged 23 to 50 and man 26 to 55, can opt for surrogacy, as can a single woman who is a widow or divorcee aged 35 to 45.
Can donor eggs or sperm be used in surrogacy?
Yes, since the 2024 amendment. One donor gamete, either egg or sperm, can be used if a District Medical Board certifies a medical necessity. The child must still be genetically related to one intending parent.
Who can be a surrogate mother?
A surrogate must be a willing, married woman aged 25 to 35 who has a child of her own. She can act as a surrogate only once in her lifetime and must be medically fit.
Can single people or same-sex couples opt for surrogacy?
No. Under the current law, single men, unmarried couples, same-sex couples and live-in partners are not eligible for surrogacy in India. These exclusions are being challenged before the Supreme Court.
Can NRIs use surrogacy in India?
NRIs and Overseas Citizens of India may be eligible for surrogacy subject to conditions, but foreign nationals are generally not. Because the rules are evolving, NRIs should take specific legal advice before starting.
Who are the legal parents of a surrogate child?
The child born through surrogacy is legally deemed to be the biological child of the intending couple or intending woman, with full rights. The surrogate has no parental claim over the child.
What is the penalty for commercial surrogacy?
Commercial surrogacy is a serious offence. Those who undertake or facilitate it, including agents and clinics, can face imprisonment of up to ten years and a heavy fine under the Surrogacy (Regulation) Act, 2021.
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