Surrogacy in India — what the 2021 law actually allows
Surrogacy in India is now governed by a comprehensive statutory framework — the Surrogacy (Regulation) Act, 2021 (Act 47 of 2021), brought into force on 25 January 2022, with the Surrogacy (Regulation) Rules, 2022 made under it and the Amendment Rules of 10 March 2023 and 21 February 2024. The 2021 Act, read with the companion Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021), replaces the pre-statutory regime that ran from the ICMR's 2005 ART Guidelines through the period of an unregulated commercial-surrogacy industry and that produced the controversial fact-patterns the Supreme Court considered in Baby Manji Yamada v Union of India, (2008) 13 SCC 518 and the Gujarat High Court in Jan Balaz v Anand Municipality, AIR 2010 Guj 21. The 2021 statute permits only altruistic surrogacy, prohibits commercial surrogacy outright, confines eligibility to a narrow category of intending parties, requires registration of every surrogacy clinic, and creates a criminal-offences regime under Sections 35 to 44. This guide sets out what the 2021 statute permits, what it prohibits, and what it criminalises.
Until 25 January 2022 — the day the Surrogacy (Regulation) Act, 2021 came into force — surrogacy in India was governed by the Indian Council of Medical Research's National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, 2005, an instrument that carried no statutory force and that ran in parallel with a large, commercial, foreign-client-driven surrogacy industry concentrated in Mumbai, Anand and Delhi. The pre-statutory regime produced the doctrinal cases — Baby Manji Yamada v Union of India, (2008) 13 SCC 518 (a Japanese commissioning parent, an Indian surrogate, citizenship and custody confusion at the child's birth) and Jan Balaz v Anand Municipality, AIR 2010 Guj 21 (a German commissioning couple, Indian-born twins, statelessness at birth, citizenship under Section 3 of the Citizenship Act, 1955) — that exposed the gap between the medical reality of commercial surrogacy and the absence of a domestic legal framework to govern it. The 2021 Act closes the gap by re-engineering the framework end-to-end. The Act permits surrogacy only on altruistic terms, defines a narrow category of intending parties, places every surrogacy clinic under a registration regime, and brings the major contraventions within the criminal law.
The legislative architecture — two statutes, two boards
The 2021 framework is carried by two parallel statutes. The Surrogacy (Regulation) Act, 2021 (Act 47 of 2021) regulates the practice of surrogacy — the carriage of a child by a surrogate mother for an intending couple or an intending woman with the intention of handing over the child after birth. The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) regulates the medical procedures underlying surrogacy — in-vitro fertilisation, gamete donation, embryo culture and the operation of ART banks and ART clinics. The two Acts were enacted within a fortnight of each other in December 2021; the Surrogacy Act was brought into force on 25 January 2022 and the ART Act on 25 January 2022 as well. The Acts share a common architecture and a common regulatory vocabulary, but they govern different practices and create different offences. A surrogacy clinic carrying out IVF is subject to both.
The regulatory architecture of the Surrogacy Act is set out in Sections 14 to 32. Section 14 establishes the National Assisted Reproductive Technology and Surrogacy Board (NASB) at the central level, chaired by the Union Minister for Health and Family Welfare and comprising medical experts, representatives of women's organisations, scientists and parliamentarians. Sections 15 to 23 set out the Board's composition, functions, term and procedure. Sections 24 to 31 establish the State Assisted Reproductive Technology and Surrogacy Board in each state and Union Territory, with the State Health Minister as chair, charged with monitoring the implementation of the Act, advising the National Board on policy and reviewing the performance of the appropriate authorities in the state. Section 32 creates the Appropriate Authority at the state or Union Territory level — the operational regulator empowered to grant, suspend or cancel a registration certificate, to investigate complaints, and to refer offences for prosecution.
The functions of the National Board, set out in Section 17, are advisory and policy-setting — laying down a code of conduct for surrogacy clinics, setting the minimum standards for laboratory and diagnostic equipment, advising the central government on policy. The functions of the State Board, set out in Section 28, are operational — monitoring the implementation in the state, reviewing the activities of the appropriate authorities, sending reports to the National Board. The Appropriate Authority under Section 35 of the Act is the empowered field office. The structure is borrowed, in form, from the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994; the legislative design is consciously parallel.
What surrogacy is — the definitions in Section 2
Section 2 of the Surrogacy Act sets out the definitions that shape the framework. "Surrogacy" is defined in Section 2(zd) as the practice whereby one woman bears and gives birth to a child for an intending couple or an intending woman with the intention of handing over such child to the intending couple or intending woman after birth. "Altruistic surrogacy" is defined in Section 2(b) as a practice in which no charges, expenses, fees, remuneration or monetary incentive of any kind, except the medical expenses and the insurance coverage of the surrogate mother during the pregnancy, are given to the surrogate mother or her dependents or her representative. "Commercial surrogacy" is defined in Section 2(g) as commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except medical expenses and insurance coverage.
"Intending couple" is defined in Section 2(r) as a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy. "Intending woman" is defined in Section 2(s) as 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 single-woman category, originally limited to widows and divorcees, was the subject of the 2024 amendment rules following the Supreme Court's order in Arun Muthuvel v Union of India, WP (C) No. 756 of 2022 — the petition challenged the scheme on Article 14 grounds and the amendment narrowed the practical exclusion of single women suffering documented medical infertility. "Surrogate mother" is defined in Section 2(zg) as a woman who agrees to bear a child through surrogacy from the implantation of embryo in her womb and fulfils the conditions in Section 4(iii)(b). The "couple" defined in Section 2(h) means the legally married Indian man and woman above the age of 21 years and 18 years respectively. Same-sex couples are excluded — a position that has, since the Supreme Court's order in Supriyo @ Supriya Chakraborty v Union of India, (2023) — been brought back into constitutional contestation.
What is permitted — Sections 3 and 4
Section 3 sets out the prohibitions placed on the practice of surrogacy, surrogacy clinics, and medical practitioners. No surrogacy clinic, gynaecologist, paediatrician, embryologist or any other medical practitioner shall conduct or associate with surrogacy procedures unless the clinic is registered under the Act. No medical practitioner shall conduct surrogacy or surrogacy procedures unless the indication, the intending couple or intending woman, and the surrogate mother meet the eligibility conditions in Section 4. No surrogacy procedures shall be conducted for any condition other than those certified by an Appropriate Authority. No advertisement, in any form, of surrogacy or surrogacy procedures is permitted; the prohibition on advertisement is wide and absolute.
Section 4 carries the eligibility framework — the operational heart of the statute. The purposes for which surrogacy is permitted are confined under Section 4(ii) to a couple who have a proven medical indication necessitating gestational surrogacy and intend to have a child; for altruistic surrogacy purposes; and not for commercial purposes or for producing children for sale, prostitution or any other form of exploitation. The intending couple must hold a certificate of essentiality and a certificate of eligibility under Section 4(iii)(a); the certificate of essentiality is issued by the Appropriate Authority after a medical board certifies the indication and confirms that the couple have suffered from proven infertility; the certificate of eligibility certifies that the couple are Indian citizens, married for at least five years, the female partner is between 23 and 50 years and the male partner is between 26 and 55 years, they have no surviving child (biological, adopted or surrogate) save with specified medical exceptions, and they have insurance coverage for the surrogate mother for 36 months as specified in the 2022 Rules.
The surrogate mother must, under Section 4(iii)(b), hold a certificate of eligibility. She must be a close relative of the intending couple — though the 2022 Rules and subsequent administrative clarifications have read "close relative" to admit a willing woman as defined by the Appropriate Authority; she must be a married woman with a child of her own; she must be between 25 and 35 years of age; she must not have been a surrogate mother earlier; she must be certified medically and psychologically fit; and she must not provide her own gametes for the surrogacy (gestational surrogacy only — the Act prohibits traditional or genetic surrogacy where the surrogate is the biological mother). The surrogate mother is also entitled, under Section 4(iii)(c), to abortion in accordance with the Medical Termination of Pregnancy Act, 1971 — the consent architecture of the MTP Act applies to the surrogate.
Consent, abandonment and insurance — Sections 6 to 8
Section 6 prescribes the consent regime. Written informed consent of the surrogate mother is mandatory; the consent must be on a form prescribed by the 2022 Rules, in a language she understands, after she has been told the side effects and after-effects of the procedure. The surrogate mother has the right to withdraw consent before the implantation of the embryo. Once the embryo is implanted, the withdrawal right ends and the surrogacy proceeds to term subject only to the surrogate's right to MTP under Section 4(iii)(c). Section 7 prohibits the intending couple or intending woman from abandoning the child — born through surrogacy, whether on grounds of mental or physical abnormality, sex of the child or any other condition. The intending couple are deemed to be the biological parents of the child for all purposes; the surrogate mother has no parental rights and no continuing obligations.
Section 8 — read with the 2022 Rules — requires the intending couple to obtain insurance coverage for the surrogate mother. The coverage must be from an IRDAI-registered insurance company or agent, for a period that the 2022 Rules originally set at 36 months from the date of embryo implantation; the period covers post-partum complications, treatment, hospitalisation and similar contingencies. The Surrogacy (Regulation) Amendment Rules, 2024 dated 21 February 2024 modified the insurance-period provision; the operative period continues at 36 months for the standard case. The insurance is the principal compensatory entitlement of the surrogate mother under the altruistic regime — she receives no payment for the gestation, only medical expenses and insurance.
Parentage of the child — Section 8
Section 8 also resolves the parentage question. A child born out of a surrogacy procedure shall be deemed to be the biological child of the intending couple or intending woman. The child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force. The pre-statutory regime had no such rule — the parentage of a surrogate-born child was, in Baby Manji Yamada, an open question handled by the Supreme Court through directions tailored to the case, and in Jan Balaz, by the Gujarat High Court's recognition of the children's Indian-citizenship-by-birth under Section 3 of the Citizenship Act, 1955 as a stop-gap pending their travel to Germany. The 2021 statute closes that gap. The intending parents are, by statutory deeming, the biological parents from birth; no transfer of parentage, no formal adoption and no further legal step is required.
The corollary in Section 7 — the absolute prohibition on abandonment — extends to a child born with a disability or with a different sex from that the intending couple had imagined. The statute, by combining Sections 7 and 8, foreclosed the Baby Manji scenario in which a commissioning parent's withdrawal had left a newborn without a legal guardian. The companion ART Act, 2021 carries a parallel rule in Section 21 — the child born through an ART procedure is deemed to be the biological child of the commissioning couple, with the same entitlements as a natural child. The two statutes operate together to give every surrogate-born or ART-born child a single, statutorily-recognised parentage from birth.
Registration of clinics — Sections 11 to 13
The clinic-side architecture is set out in Sections 11 to 13. Section 11 requires every surrogacy clinic in India to register with the Appropriate Authority within 60 days of the appointed date (or, for a new clinic, before it commences any surrogacy procedure). The registration is granted after the Appropriate Authority is satisfied that the clinic has the prescribed equipment, the prescribed personnel, the requisite expertise and meets the standards laid down by the National Board. Registration is for a fixed term of three years under the 2022 Rules and is renewable. The clinic must display its registration certificate prominently and must not advertise its services. A clinic that operates without registration, that allows commercial surrogacy or that fails to maintain the prescribed records is liable to suspension or cancellation of registration under Section 13.
The records the clinic must maintain — under Section 12 and the 2022 Rules — are extensive: all consent forms, the medical records of the surrogate mother, the embryo implantation records, the records of the intending parties' certificates of essentiality and eligibility, the insurance documents and the records of the procedures conducted. The records must be preserved for 25 years from the date of the procedure and are to be made available to the Appropriate Authority on demand. The recordkeeping architecture is the principal compliance burden the statute places on surrogacy clinics; it is also the principal evidentiary basis the Appropriate Authority and the criminal courts rely on when an offence under Sections 35 to 44 is alleged.
Offences and penalties — Sections 35 to 44
The criminal-offences regime is set out in Sections 35 to 44 and is wide. Section 35 makes it an offence to undertake or advertise commercial surrogacy, to abandon, disown or exploit the surrogate child, to exploit the surrogate mother, to sell or import a human embryo or gametes for the purpose of surrogacy, to conduct sex selection for surrogacy, or to conduct surrogacy or its procedures in an unregistered clinic. The maximum punishment under Section 35 is imprisonment up to ten years and fine up to ten lakh rupees — a serious-offence threshold reflecting the statute's strong-prohibition design. Section 36 prescribes imprisonment up to five years and fine up to ten lakh rupees for a registered medical practitioner who contravenes the Act.
Section 37 penalises an intending couple or intending woman who undertakes surrogacy other than in accordance with the Act — imprisonment up to five years and fine up to five lakh rupees on first conviction, with enhanced penalties for subsequent offences. Section 38 makes the contravention of any provision for which no separate penalty is prescribed punishable with imprisonment up to three years and fine up to five lakh rupees. Section 39 makes offences under the Act cognizable, non-bailable and non-compoundable — a deliberately heavy procedural framework that signals the seriousness with which the statute treats the commercial-surrogacy prohibition. Sections 40 to 44 set out further provisions on abetment, presumption against the medical practitioner where surrogacy is shown to have taken place at the clinic, the application of the Code of Criminal Procedure to offences under the Act and the protection of action taken in good faith. The combined effect is to make commercial surrogacy a serious offence under Indian criminal law, with the medical practitioner, the clinic, the intending couple and any intermediaries each independently liable.
The pre-statutory cases — Baby Manji, Jan Balaz, Re Baby M
The pre-statutory cases that shaped the legislative response remain doctrinally important — both as the empirical record the Parliamentary Committee on the Surrogacy Bill drew on and as the comparator against which the 2021 framework is read. Baby Manji Yamada v Union of India, (2008) 13 SCC 518 arose from a Japanese commissioning couple's commercial-surrogacy arrangement with an Indian surrogate in Anand, Gujarat. The commissioning couple separated before the birth; the commissioning father wanted custody of the child; the commissioning mother withdrew; the surrogate mother had no claim under the contract. The Supreme Court — at the stage of habeas corpus by the child's grandmother — directed that the child be handed over to the grandmother pending resolution of the commissioning father's nationality-and-custody questions through the appropriate authorities. The decision is best read as a case-specific intervention against a legal vacuum; the Court did not lay down general principles. The vacuum the case exposed is what the 2021 statute fills.
The Gujarat High Court's order in Jan Balaz v Anand Municipality, AIR 2010 Guj 21 — a German commissioning couple, twins born to an Indian surrogate in Anand, Germany's refusal to recognise surrogacy and German authorities' refusal to issue travel documents to the children — held that the twins were Indian citizens by birth under Section 3 of the Citizenship Act, 1955 and entitled to Indian passports. The order resolved the immediate statelessness; it did not resolve the long-term parentage question. Section 8 of the 2021 statute, by deeming the intending parents to be the biological parents from birth, forecloses the recurrence of the Jan Balaz citizenship-and-parentage tangle so long as the surrogacy is within the 2021 framework.
The doctrinal backdrop runs further back to Re Baby M, 537 A.2d 1227 (NJ 1988) — the New Jersey Supreme Court's decision invalidating a paid surrogacy contract on public-policy grounds (the sale of a child) and treating the dispute as a custody dispute between the surrogate mother (the biological mother of the child) and the commissioning couple, decided on the best-interests-of-the-child standard. The Re Baby M doctrine — that a commercial surrogacy contract is not enforceable as a contract and that the relationship between surrogate and child is to be governed by ordinary family-law standards — has shaped surrogacy regulation across common-law jurisdictions. The 2021 statute's altruistic-only design draws on the Re Baby M line; the criminal-offences regime under Sections 35 to 44 goes further than Re Baby M by criminalising the commercial transaction itself rather than merely refusing to enforce it.
Constitutional questions and the pending litigation
The 2021 statute has been challenged on Article 14 and Article 21 grounds before the Supreme Court in a batch of petitions led by Arun Muthuvel v Union of India, WP (C) No. 756 of 2022. The principal grounds of challenge are four. First — the exclusion of unmarried women not in the widow-or-divorcee category from the intending-woman definition under Section 2(s) is said to be a violation of equality and of reproductive autonomy as recognised in K S Puttaswamy v Union of India, (2017) 10 SCC 1 (privacy, including decisional privacy over reproductive choice) and Suchita Srivastava v Chandigarh Administration, (2009) 9 SCC 1 (reproductive autonomy of mentally-disabled woman). Second — the exclusion of same-sex couples from the couple definition under Section 2(h) is said to be unconstitutional under the line beginning with Navtej Singh Johar v Union of India, (2018) 1 SCC 791 and continuing through Supriyo v Union of India. Third — the requirement that the surrogate mother be a "close relative" is said to be impractical and to discriminate against couples without willing relatives. Fourth — the criminalisation regime in Sections 35 to 44 is said to be disproportionate.
The Supreme Court has, in interlocutory orders in the Arun Muthuvel batch, granted limited reliefs — permitting donor gametes in certain medical conditions through interim directions, clarifying the eligibility of single women suffering documented infertility, and modifying the rigid five-year-marriage requirement in narrow categories. The final constitutional challenge remains pending. Subsequent amendment rules — the Surrogacy (Regulation) Amendment Rules, 2023 dated 10 March 2023 and the Amendment Rules, 2024 dated 21 February 2024 — have absorbed some of the interim directions into the regulatory text. The settled position remains that altruistic surrogacy is permitted only within the Section 4 eligibility window; the constitutional contestation of that window is live but has not, so far, produced a structural strike-down.
Surrogacy and the ART Act, 2021 — the parallel statute
The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021), brought into force on 25 January 2022, regulates the underlying procedures. ART clinics — including those that conduct IVF, gamete donation, embryo storage and similar procedures — must register with the Appropriate Authority under Sections 4 to 9 of the ART Act. The ART Act creates a parallel National Assisted Reproductive Technology and Surrogacy Board, with a partially-overlapping membership, charged with regulating ART practice. Sections 21 and 22 of the ART Act carry the rights-of-the-child framework: a child born through ART is the legal child of the commissioning couple, with the same entitlements as a natural child. Sections 33 to 41 carry the offences regime — running broadly parallel to Sections 35 to 44 of the Surrogacy Act but with the practice-specific contraventions (mishandling of gametes, sex selection in ART, sale of embryos in ART).
The two statutes operate together. A clinic conducting IVF for a surrogacy arrangement is subject to registration under both. The intending couple seeking surrogacy through IVF must meet the eligibility under the Surrogacy Act and the procedure-specific consents under the ART Act. A medical practitioner conducting a surrogacy involving a gamete donor must satisfy both statutes. The legislative design is to cover the medical-procedure side under the ART Act and the gestation-and-parentage side under the Surrogacy Act, with overlap deliberately built into the registration architecture so that no clinic falls between the two statutes.
What the framework produces — and what it does not
The 2021 framework produces, in working effect, a settled statutory regime for surrogacy in India — altruistic only, registration-mandatory, eligibility-confined, criminally-enforced, with statutory parentage from birth. The pre-2021 ambiguities the courts had to resolve case-by-case in Baby Manji and Jan Balaz are foreclosed by Section 8. The commercial-surrogacy industry has been formally extinguished by the criminalisation in Section 35; the residual activity has moved either out of the country, into the altruistic-compliant frame, or into the grey market that the Appropriate Authorities are charged with detecting under Section 32. The companion ART framework regulates the procedural side. The two boards — the National Board and the State Boards — supply the policy-and-oversight architecture.
What the framework does not produce is a comprehensive settlement of the constitutional contestation. The Section 2(s) exclusion of unmarried women, the Section 2(h) exclusion of same-sex couples, the close-relative requirement for the surrogate mother and the proportionality of the criminal-offences regime are live issues in the Arun Muthuvel batch and in the post-Supriyo follow-up petitions. The constitutional questions the 2021 framework leaves open are the same questions the framework was drafted to avoid — the reach of reproductive autonomy under Article 21, the equality dimension of family-formation under Article 14, and the place of same-sex couples in the marriage-and-reproduction architecture of Indian family law.
The practical takeaway for a researcher reading the statute is that the framework operates strictly on its own terms. An intending couple or intending woman who meets the Section 4 eligibility may obtain the certificates of essentiality and eligibility, identify a willing surrogate within the Section 2(zg) parameters, contract through a registered clinic for the medical and insurance arrangements, and proceed to a surrogacy that produces a child whose parentage vests in them by statutory deeming. An arrangement outside the Section 4 window — for compensation, with an ineligible surrogate, with an ineligible intending party, or at an unregistered clinic — is a criminal offence under Sections 35 to 44 with imprisonment of up to ten years and a fine of up to ten lakh rupees for the principal contravention. The doctrinal architecture is, in the language of the 2021 statute, settled; the constitutional architecture is not.