Surrogacy in India underwent a fundamental transformation with the Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022. The short answer: altruistic surrogacy is legal in India, but commercial surrogacy is completely banned. India, which was once the global capital of commercial surrogacy with a $2.5 billion annual market in 2012, has shut that door entirely. Today, surrogacy is a tightly regulated, medically necessary, altruism-based process available only to specific categories of Indian citizens.
What the Surrogacy (Regulation) Act, 2021 Actually Says
The Act defines surrogacy as a practice where a woman carries and delivers a child for an intending couple and hands the child over after birth. It draws a sharp distinction between altruistic surrogacy – where the surrogate mother receives no financial compensation beyond approved medical expenses, insurance, food, and travel related to the pregnancy – and commercial surrogacy, which is completely prohibited.
Commercial surrogacy is a criminal offence punishable by up to 10 years imprisonment and a fine of up to Rs 10 lakh. This applies to the intending couple, the surrogate mother (if she accepts payment), any intermediary, and any clinic that facilitates such an arrangement.
The companion Assisted Reproductive Technology (Regulation) Act, 2021 works alongside the Surrogacy Act to govern ART clinics that perform surrogacy procedures. ART clinics must be registered with the National ART and Surrogacy Board. Both Acts together replaced years of unregulated practice governed only by advisory ICMR guidelines.
Who Can Use Surrogacy: Eligibility for Intending Parents
The 2021 Act and its 2024 amendments set strict criteria for intending parents. Eligible categories include: married heterosexual Indian couples where the wife is between 23-50 years and the husband is between 26-55 years; the couple must have a medical certificate from the District Medical Board certifying that they have a medical condition necessitating surrogacy (infertility, uterine absence, recurrent pregnancy loss etc.); the couple must not have any living biological child, adopted child, or child through surrogacy – with exceptions if the existing child has a disability, life-threatening condition, or incurable illness; and single Indian women (widowed or divorced) between 35-45 years who can also access surrogacy using their own eggs and donor sperm.
Who cannot use surrogacy in India: LGBTQ+ couples and same-sex partners; unmarried couples or those in live-in relationships; single men; foreign nationals (even if of Indian origin); OCIs and NRIs without specific case-by-case approval; and couples who already have a living healthy child. The Supreme Court has agreed to examine whether the prohibition on second-child surrogacy violates reproductive autonomy in cases of secondary infertility.
Who Can Be a Surrogate Mother: Eligibility Criteria
The surrogate mother must: be a close relative of the intending couple (this is strictly enforced); be a married woman aged 25-35 years; already have at least one biological child of her own; have not been a surrogate previously (one-time only in her lifetime); be medically and psychologically certified fit by a registered medical practitioner; provide written informed consent after counselling; and have insurance coverage for 36 months post-delivery provided by the intending parents covering pregnancy-related complications.
The surrogate mother is entitled to: medical expenses related to the pregnancy, a prescribed insurance policy, food and nutrition support, and travel costs. She cannot receive any additional financial payment. If the surrogate conceives naturally through the use of intending parents’ embryo, the child is legally the intending couple’s biological child and the surrogate has no legal parental claim.
Key Certificates Required
The surrogacy process requires three certificates: an Essentiality Certificate from the District Medical Board confirming the intending couple’s medical need; an Eligibility Certificate for the intending parents from the appropriate authority; and an Eligibility Certificate for the surrogate mother. A Delhi High Court ruling in November 2025 allowed an Indian couple residing in Canada to participate in surrogacy board proceedings via virtual hearings, facilitating NRI access while maintaining compliance requirements.
Controversies and Legal Challenges
The Act has been widely criticised for being overly restrictive. Key controversies: the “close relative” requirement for the surrogate limits the practical availability of surrogates significantly, as few close relatives volunteer; the ban on LGBTQ+ and single male access has been challenged as discriminatory; Rule 7 originally banned donor eggs, but the Supreme Court stayed this in cases involving conditions like MRKH Syndrome; and the prohibition on second-child surrogacy is under Supreme Court scrutiny for constitutionality.
Final Thought
Surrogacy is legal in India in 2026, but only in the strictly altruistic, close-relative, medically necessary model established by the 2021 Act. Commercial surrogacy is a serious crime. The legal framework reflects a pendulum swing from India’s unregulated commercial surrogacy era (2002-2015) to a highly protective, restrictive regime. If you are considering surrogacy as an option, consult a fertility specialist at an ART-registered clinic and a family law attorney to understand all eligibility and documentation requirements thoroughly before proceeding.
Frequently Asked Questions (FAQs)
Q1. Is commercial surrogacy completely banned in India?
A: Yes, completely. Commercial surrogacy – where the surrogate mother receives any financial benefit beyond approved medical expenses, insurance, food, and travel – is banned under the Surrogacy (Regulation) Act, 2021. The penalty is imprisonment up to 10 years and fine up to Rs 10 lakh. This applies to the intending couple, clinics, and intermediaries. India went from being the world’s largest commercial surrogacy market to a complete ban in less than a decade.
Q2. Can a foreign couple use an Indian surrogate?
A: No. The Surrogacy (Regulation) Act, 2021 restricts surrogacy to Indian married heterosexual couples and single Indian women (widowed/divorced). Foreign nationals, including OCIs (Overseas Citizens of India) and PIOs, are generally not permitted to access surrogacy in India under the current framework. NRIs face significant practical barriers, though the 2025 Delhi High Court ruling allowing virtual hearing participation may ease procedural burdens for qualifying NRI cases.
Q3. Can a sister or sister-in-law be a surrogate in India?
A: Yes, this is actually the primary intended model. The “close relative” requirement means the surrogate must be someone like a sister, sister-in-law, or other close family member of the intending couple. The surrogate must still meet all other eligibility criteria: married, aged 25-35, has at least one biological child of her own, never been a surrogate before, and medically/psychologically certified fit. She must provide written informed consent after counselling.
Q4. Who is the legal parent of a surrogacy-born child?
A: The child born through surrogacy is legally recognised as the biological child of the intending couple under the Surrogacy (Regulation) Act, 2021. The surrogate mother has no legal parental claim or custody rights over the child after birth. The intending parents cannot abandon, disown, or refuse to accept the child under any circumstances. Even if the child is born with a disability, the intending parents are legally obligated to accept parenthood.
Q5. What happens if someone offers to pay me to be a surrogate?
A: Accepting payment beyond the permitted medical expenses, insurance, food, and travel allowances to be a surrogate constitutes participating in commercial surrogacy, which is a criminal offence under the 2021 Act carrying up to 10 years imprisonment and up to Rs 10 lakh fine. If approached with a commercial surrogacy offer, you should decline and may report the matter to the appropriate authority or police. Legitimate altruistic surrogacy arrangements are always facilitated through NABH-registered ART clinics.
