INTRODUCTION
Dreams fuel surrogacy decisions, the dreams of parenthood, of giving life and of building families beyond biological constraints. In India, the legal landscape of reproductive governance has undergone a significant transformation with the enactment of two pivotal legislations: the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021.
India’s surrogacy laws regulate reproductive practices to ensure ethics and protect stakeholders. While curbing exploitation, they face criticism for excluding LGBTQ+ individuals, single parents, and vulnerable women. Beyond regulation, these laws deeply influence who may become a parent, a surrogate, or a legally recognized child.
SURROGACY: MEANING AND TYPES
The term “surrogacy” originates from the Latin word subrogare, meaning “to substitute” or “to appoint in place of another.” As per American Law Reports, surrogacy is typically defined as “...a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child's birth”.[1] It enables individuals and couples, such as women with uterine anomalies, those medically unfit for pregnancy, single men and same-sex couples, to experience parenthood.
Surrogacy is primarily divided into two medical types- traditional and gestational. In traditional surrogacy, the surrogate is inseminated with the intended father's sperm, making her the genetic mother of the child. This method is less commonly used today due to the complex emotional and legal implications. On the other hand, gestational surrogacy involves the implantation of an embryo—created using the gametes of the intended parents or donors—into the surrogate’s uterus. In this case, the surrogate has no genetic relationship to the child she carries.
Based on compensation, surrogacy is further categorized as commercial or altruistic. Commercial surrogacy involves financial payment to the surrogate beyond medical and related expenses. In contrast, altruistic surrogacy permits only reimbursement of medical costs and insurance coverage, with no additional monetary gain. The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy and permits only altruistic surrogacy.
LEGISLATIONS REGULATING SURROGACY LAWS IN INDIA
Surrogacy in India has transitioned from a largely unregulated practice to a strictly governed and closely monitored legal framework. The primary legislative instruments governing surrogacy and assisted reproduction in India are the Surrogacy Regulation Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021.
KEY PROVISION OF THE SURROGACY REGULATION ACT, 2021
The Surrogacy Regulation Act 2021 emerged as a response to concerns regarding exploitation, commercialization, and the commodification of reproductive services. The Act seeks to prohibit commercial surrogacy, promote altruistic surrogacy, and protect the rights of all stakeholders—especially surrogate mothers and children born through surrogacy.
Section 3 prohibits unregistered surrogacy clinics from conducting surrogacy-related procedures and bans commercial surrogacy, sex-selective practices, and embryo storage for unauthorized purposes. It also prohibits advertising or inducement of women for surrogacy roles.
Section 4 restricts surrogacy to altruistic purposes only and mandates a certificate of essentiality and eligibility for intending couples, granted upon proof of medical necessity, legal custody intent, and three-year postpartum insurance for the surrogate. Only gestational surrogacy is permitted, ensuring the surrogate has no genetic link to the child.
Section 5 prohibits anyone, including relatives, from facilitating surrogacy outside the conditions set in Section 4.
Section 10 outlaws forced abortion of surrogate pregnancies, unless specifically allowed under prescribed medical conditions.
Sections 11 and 12 require all surrogacy clinics to be registered and meet standards concerning infrastructure, staff qualifications, and equipment. Certificates are valid for three years and subject to renewal.
Section 17 empowers the National Assisted Reproductive Technology and Surrogacy Board to lay down regulations and supervise clinics, while Section 26 mandates the formation of State Boards to implement and monitor compliance at the local level.
Sections 38 to 41 of the Surrogacy (Regulation) Act, 2021 establish stringent penalties to ensure compliance and prevent exploitation.
o Section 38: Bans commercial surrogacy, broker involvement, advertising, and exploitation; violators face up to 10 years’ imprisonment and ₹10 lakh fine.
o Section 39: Penalizes professionals for other breaches with up to 5 years’ jail and ₹10 lakh fine; repeat violations may lead to medical license suspension.
o Section 40: Punishes violations of the altruistic model with 5 years’ jail and ₹5 lakh fine for first-time offenders, and 10 years’ jail and ₹10 lakh fine for repeat offenders.
o Section 41: Covers unspecified offenses with up to 3 years’ jail, ₹5 lakh fine, and ₹10,000 daily fine for continued non-compliance.
Recent Amendment to Surrogacy Rules
The Central Government has amended the Surrogacy (Regulation) Rules, 2022, permitting couples diagnosed with medical conditions to pursue surrogacy using donor gametes, provided that at least one gamete, either the egg or sperm belongs to the intending couple. This amendment marks a step toward greater medical inclusivity within the framework of altruistic surrogacy.
KEY PROVISION OF THE SURROGACY REGULATION ACT, 2021
The Assisted Reproductive Technology (Regulation) Act, 2021 establishes a comprehensive legal framework to regulate India’s growing fertility industry and ensure the ethical, safe, and standardized use of assisted reproductive technologies (ART), including IVF.
It mandates the registration of ART clinics and gamete/embryo banks under Section 9 to enforce medical and ethical compliance. The Act creates a National ART and Surrogacy Board under Section 3 and State Boards under Section 6 to oversee implementation and maintain standards. It protects the rights of donors, recipients, and children by ensuring informed consent, confidentiality, and legal recognition of parentage. Unethical practices, such as the sale or trafficking of gametes and embryos or the use of intermediaries for donor procurement, are strictly prohibited under Section 33. Violations attract penalties ranging from ₹5 to ₹20 lakhs and imprisonment of 3 to 8 years for repeat offences, as provided under Sections 33 and 34.
Both the acts together create a dual framework that governs the entire process of reproductive assistance, from surrogacy arrangements to the management of clinical services. While these Acts represent a significant step toward standardized regulation, concerns about inclusivity and rigid eligibility criteria remain prominent.
LIVES AFFECTED BY THE LAWS
Intended parents
Legal Clarity on Parentage- The Acts designate the intended parents as the legal parents of the child from birth which reduces legal ambiguity in matters of custody and inheritance. The clear eligibility norms and structured procedures ensure a secure legal environment, protecting the rights of parents, surrogates and children alike.
Judicial Recognition of Reproductive Rights- In B. K. Parthasarthi v. Government of Andhra Pradesh,[2] the Andhra Pradesh High Court upheld an individual's reproductive autonomy as part of the right to privacy. It concurred with the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which recognized the right to reproduce as a basic civil right. Even in Javed v. State of Haryana[3], although the Supreme Court upheld the two-child norm for Panchayati Raj elections, it refrained from denying the right to procreation as a fundamental human right.[4]
Restricted Eligibility and Exclusion- the act permits altruistic surrogacy only for married, heterosexual, clinically infertile couples, thereby excluding LGBTQIA+ individuals, single persons and divorced men. This restricted eligibility reflects a heteronormative bias. It stands in contrast to Navtej Singh Johar v. Union of India[5], which decriminalized homosexuality and affirmed LGBTQ+ rights.
Administrative delays and procedural burdens- The legal requirements like mandatory registration, psychological and physical evaluations and formal documentation, often prolong the process, causing emotional and logistical frustration for couples seeking timely parenthood.
Surrogate mothers
Surrogate mothers are primary contributors to the process, yet they are often objectified based on fertility, appearance and socio-economic status, rather than recognized as equal stakeholders.
Physical & Mental Health Safeguards- The Act mandates mental and physical evaluations to ensure the health and readiness of surrogates. While intended to protect them, these checks often don't address deeper socio-economic pressures or long-term care.
Altruistic model promoting forced labour- Surrogacy often becomes an economic compulsion for low-income women, turning pregnancy into a form of contract-bound labour. Dubbed the “womb renting business,” this model raises ethical concerns by commodifying the female body under the guise of altruism.
Legal Protections vs. Reality- Contractual protections exist on paper but are inconsistently enforced. Violations range from poor healthcare to lack of postnatal support or social ostracism.
Long-Term Social & Economic Fallout- Post-delivery, many surrogates return to financial hardship with little sustained support. Their decision often stems from need, not empowerment—leaving them vulnerable even after the process ends.
Children born through surrogacy
Legal Recognition (Section 8, Surrogacy Regulation Act, 2021)- Children born through surrogacy are legally considered the biological children of the intending couple or intending woman and are entitled to all rights and privileges of a natural child under Indian law.
Clarity on Custody and Inheritance- The Acts eliminate legal ambiguities related to parentage, safeguarding the child's rights from birth, including custody and inheritance.
Child Welfare Safeguards- Mandatory health screenings, certification of surrogacy agreements, and regulated ART procedures are required to ensure the child’s physical and emotional well-being.
Healthcare Standards- The ART Act mandates high-quality healthcare and follow-up services through licensed clinics, aimed at improving long-term outcomes for children born via assisted reproduction.
CASE STUDIES
The Baby Manji Yamada case[6] involved a Japanese couple who travelled to Anand, Gujarat, for surrogacy services. After the couple divorced mid-process, the child was born and left in India under care. The biological father, unable to adopt the child due to Indian laws barring single men from adopting, faced legal hurdles in taking the child to Japan. The child’s grandmother’s request for a passport was denied, leading to a Supreme Court petition. The court facilitated the issuance of a “Certificate of Identity” for international travel, marking a landmark judgment in cross-border surrogacy.
In the Jan Balaz case[7], a German couple had twins through an Indian surrogate mother using the father’s sperm and a donor egg. The surrogate’s name was recorded on the birth certificate, not the intended mother’s. The couple faced legal challenges over the nationality and citizenship of the children. Although initially issued passports, the authorities later demanded their surrender. The Gujarat High Court, relying on the Baby Manji precedent, ordered the issuance of Certificates of Identity after thorough investigation, allowing the twins to leave India.
CHALLENGES AND UNRESOLVED ISSUES
Negative Impact on Adoption- The growing popularity of surrogacy may divert attention from adoption, which provides homes to children in need and promotes broader social welfare.
Risk of Sex Selection & Designer Babies- Loosely regulated ART and surrogacy practices open the door to unethical use of technology, including sex-selective procedures and “designer baby” concepts—choosing physical traits and characteristics of the unborn child.
Exacerbation of Wealth Inequality- The practice deepens the economic divide, wherein poor women bear children for affluent couples, often from India’s urban elite or abroad. This reinforces class-based hierarchies and perpetuates reproductive inequality.
Altruistic Surrogacy & Legal Gaps- Though the Supreme Court has upheld altruistic surrogacy as legal, the sociolegal realities remain complex. Without robust enforcement mechanisms, these practices risk exploitation and moral compromise.
Need for Social-Ethical Reflection- Beyond just legal regulation, there is an urgent need to consider the broader societal impact of surrogacy. Ethical reflection, social discourse, and comprehensive education are critical to ensure that reproductive technologies serve both justice and human dignity.
CONCLUSION
The enactment of the Surrogacy Regulation Act 2021 and the Assisted Reproductive Technology Act 2021 represents a significant milestone in India’s approach to regulating reproductive technologies. However, while these legislative measures provide enhanced legal certainty and strict ethical oversight, they also generate substantial debate regarding inclusivity, economic fairness, and cultural representation. A humane, equitable approach is essential for truly transformative reproductive governance.
REFERENCES
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Tanvi Jha, "Ethical and Legal Perspective of Surrogacy in India", International Journal of Community Medicine and Public Health, (2022), available at: https://doi.org/10.18203/2394-6040.IJCMPH20222021
Gowda, M., Deepthi, B. & Nichanahalli, K.S., "The Assisted Reproductive Technology Act 2021 – Provisions and Implications", Indian Pediatrics, Vol. 61, pp. 675–681 (2024), available at: https://doi.org/10.1007/s13312-024-3235-8
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Sharma, R.S., "Social, ethical, medical & legal aspects of surrogacy: an Indian scenario", Indian Journal of Medical Research, Vol. 140, Suppl 1, (Nov. 2014), pp. S13–S16, available at: https://pmc.ncbi.nlm.nih.gov/articles/PMC4345743/
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Kumar, Narender, "Surrogacy Law in India: It’s Implication on Parentage", International Journal of Multidisciplinary Trends, Vol. 7, No. 4, (2025), pp. 314–316, E-ISSN: 2709-9369, P-ISSN: 2709-9350, available at: https://www.multisubjectjournal.com/article/673/7-5-14-247.pdf
Mishra, Richa & Thakral, Sahil, "Legal Subtleties of the Indian Assisted Reproductive Technology Act of 2021", The National Medical Journal of India, (2023), available at: https://nmji.in/legal-subtleties-of-the-indian-assisted-reproductive-technology-act-of-2021/
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[1] M.A. Hartshorn, “Surrogate parenting: analysis and recommendations for public policy”, (1989) 261 JAMA 1811
[2] AIR 2000 AP 156
[3] AIR 2003 SC 3057
[4] https://www.defactolaw.in/post/surrogacy-in-india-law-and-issues#viewer-10522142
[5] (2018) 10 SCC 1
[6] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 (SC)
[7] Javed v. State of Haryana, (2003) 8 SCC 369 (SC)