Surrogacy in India under the Surrogacy (Regulation) Act, 2021

Surrogacy in India is governed by its own law, the Surrogacy (Regulation) Act, 2021, which sits alongside the ART Act but is separate from it. The Act permits surrogacy only in narrow circumstances: for a medical reason, without payment to the surrogate beyond her medical and insurance costs, and only after certificates have been issued by public authorities. Much of what is still said about surrogacy in India, especially online, describes arrangements the Act now prohibits.

This guide explains what the Act requires of the people who want a child through surrogacy, of the woman who carries the pregnancy, and of the clinics involved. It is written for patients and for the doctors who refer them. It is not legal advice, and anyone considering surrogacy should take advice on their own circumstances. It publishes no success rates and no prices, because this directory holds neither for any clinic. Everything it refers to can be looked up from the directory home.

What the Act means by surrogacy

The Act defines surrogacy as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth”. The form it permits is gestational surrogacy, which it describes as “a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother”.

That last condition is reinforced elsewhere. Among the conditions a surrogate must meet, the Act says “no woman shall act as a surrogate mother by providing her own gametes”. The embryo is created by IVF and transferred to her, so surrogacy always involves an IVF laboratory. The Act's definition of a surrogate mother refers to a child “who is genetically related to the intending couple or intending woman”. Rules made under the Act set out how this is applied, and they can be amended, so ask the clinic and the appropriate authority what the current rules allow in your case before you plan treatment.

Altruistic only

The Act allows only altruistic surrogacy, which it defines as surrogacy “in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative”. Commercial surrogacy is prohibited outright. Section 3(ii) says no clinic, doctor “or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form”, and section 38 makes running a surrogacy racket, using brokers to arrange surrogate mothers, or advertising commercial surrogacy an offence.

Advertising aimed at finding surrogates is also restricted. Section 3(v) prohibits material that “seeks or aimed at seeking a woman to act as a surrogate mother”. An agency offering to find you a surrogate in return for a fee is offering something the Act forbids.

Who may seek surrogacy

The Act names two kinds of people who may seek surrogacy. The first is an intending couple, defined as “a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy”. A couple, for this purpose, is “the legally married Indian man and woman above the age of 21 years and 18 years respectively”. The second is an intending woman: “an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy”.

The medical indication comes first. The HFEA, describing the medical reasons in general terms, says “Surrogacy may be appropriate for women with a medical condition that makes it impossible or dangerous for them to get pregnant and give birth.” Under the Indian Act, that medical indication has to be certified, as the next section explains.

An intending couple also needs an eligibility certificate, which is issued only if “the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification” and “the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier”. There is an exception for a couple whose child is mentally or physically challenged or has a life-threatening or incurable illness, approved by the appropriate authority on a District Medical Board certificate.

The certificate of essentiality

Before any procedure begins, the intending couple must hold a certificate of essentiality issued by the appropriate authority. It is granted only when three conditions are met. The first is “a certificate of a medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.” A District Medical Board is chaired by the district's Chief Medical Officer, Chief Civil Surgeon or Joint Director of Health Services, and includes the district's chief gynaecologist or obstetrician and its chief paediatrician.

The second is a court order. The Act requires “an order concerning the parentage and custody of the child to be born through surrogacy”, passed by a magistrate's court of the first class or above, on an application by the intending couple or woman and the surrogate mother. The third is insurance in favour of the surrogate mother, for a period the Act sets at thirty-six months, “covering postpartum delivery complications”. These steps take time, and they come before treatment rather than during it.

The surrogate mother

The Act protects the woman who carries the pregnancy with conditions of its own, and she needs an eligibility certificate from the appropriate authority. It says “no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise”. It also says “no woman shall act as a surrogate mother more than once in her lifetime”, and she needs “a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner”.

She must be a willing participant, and the Act puts the responsibility for finding her on the intending couple or woman, who “shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother”. Her consent is protected. Section 6 requires that all known side effects be explained to her and that her written informed consent be obtained “in the language she understands”, and it gives her the right to withdraw: “the surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of human embryo in her womb.”

The child

The Act settles parentage and forbids abandonment. Section 8 says “A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.” Section 7 says the intending couple or woman shall not abandon the child “for any reason whatsoever”, and lists among those reasons genetic or birth defects, the sex of the child, and the conception of more than one baby. The decision to go ahead is a commitment to whichever child is born.

Surrogacy clinics and their registration

A clinic that carries out surrogacy needs a registration under the Surrogacy Act, separate from its registration under the ART Act. Section 11(1) says “No person shall establish any surrogacy clinic for undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly registered under this Act.” Under section 12, “Every certificate of registration shall be valid for a period of three years”, and the certificate “shall be displayed by the surrogacy clinic at a conspicuous place.” Section 3(iv) adds that surrogacy may not be carried out anywhere other than a registered place.

This directory does not hold surrogacy registrations. The registration number on each clinic page, and the level where one is recorded, come from the ART side of the National ART & Surrogacy Registry extract, and an ART registration says nothing about whether a clinic is registered for surrogacy. Pages such as surrogacy in Hyderabad and surrogacy in Pune list the clinics in a city that name surrogacy on their own website. That is the clinic's own statement, not evidence of a surrogacy registration. Ask to see the surrogacy certificate itself, and check the dates on it.

A note on storage and sex selection

Two further prohibitions are worth knowing. Section 3(vii) says no one shall “store a human embryo or gamete for the purpose of surrogacy”, although storage for other lawful purposes such as IVF is not affected. Section 3(viii) prohibits sex selection for surrogacy in any form. Embryo testing is governed by the ART Act, which allows it only to screen for known heritable or genetic disease; the embryo testing page explains what that covers.

Questions to ask before you begin

• Is the clinic registered under the Surrogacy Act, and can you see the certificate and its dates?
• Is the laboratory that will create the embryos registered under the ART Act at Level 2?
• Which appropriate authority covers your state, and how do you apply for the certificates?
• What does the District Medical Board need from your doctors to certify the medical indication?
• Who arranges the surrogate mother's insurance, and what does it cover?
• Will the surrogate mother receive independent counselling and an explanation in her own language?
• Under the rules as they stand today, whose eggs and sperm may be used in your case?

For doctors referring a patient

A referral for surrogacy begins with the medical indication, because the District Medical Board will need it documented. Refer to a clinic that can show a current surrogacy registration as well as a Level 2 ART registration for the laboratory work. The ART registration on each clinic page here, and the level where one is recorded, are taken from the registry extract; the surrogacy registration has to be checked separately. The guide to clinic levels explains the ART side, the guide to donor treatment covers the ART Act's donor rules, and the surrogacy page describes the treatment itself.

To find registered clinics by place, use the clinics index or a city page such as Bengaluru or Delhi. The fertility doctors index lets you look up a named doctor, and the treatments index explains each related procedure. The guide to choosing an IVF clinic covers the checks that apply to any clinic.

Where this guide comes from

Statements about the law are quoted from the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. The general description of when surrogacy may be appropriate is quoted from the UK's Human Fertilisation and Embryology Authority (HFEA); UK surrogacy law is very different from India's, and nothing else here relies on it. Much of the detail, including the forms, the insurance amount and the number of attempts allowed, is left to rules made under the Act, and those rules can change. Facts about clinics come from the National ART & Surrogacy Registry extract this directory holds and from each clinic's own website. Nothing in this guide is legal or clinical advice, and nothing in it is sponsored.