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Surrogacy Insights in India


Before the 2015 change of laws, India was a top choice for international surrogacy due to its lenient regulations and lower costs. India’s surrogacy industry boomed, drawing intended parents globally.    Commercial surrogacy thrived in India, however, surrogates frequently hailed from economically disadvantaged backgrounds. Critics targeted the industry for exploitation and insufficient regulation, alongside concerns about the rights and well-being of surrogate mothers.  In response, the Indian government initiated a series of reforms to regulate surrogacy.



Present Day Law


The Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology Act 2021 (“ART Act”) encompass various provisions outlining the criteria for legal surrogacy and assisted reproduction technology (ART).  Below is an overview summarizing the legal changes in India’s surrogacy laws.


The Initial Changes: 2015-2020


In 2015, the Indian government issued a directive prohibiting foreign intended parents from entering surrogacy arrangements in India.  This change was codified into law in 2020 with the Surrogacy (Regulation) Act, which limited surrogacy services to Indian citizens, including those who live abroad.  The embryos used must be biologically related to both the intended parents. The Bill did provide a legal pathway for the intended parents to be recognized as the child’s legal and biological parents.



The Surrogacy (Regulation) Act 2021


In 2021, the Surrogacy (Regulation) Act was further revised. The new laws restricted surrogacy services to married Indian couples who have been legally married for at least five years, and who could provide a certificate of proven infertility. Furthermore, surrogacy was limited to a ‘close relative’ of the couple, adding a layer of complexity to finding a suitable surrogate.



The Consecutive Amendments: 2022


Amendments in 2022 further tightened surrogacy regulations.  Key provisions of the bill included:


  1. Surrogacy is only legal for intending couples who have been married for at least five years and are between 23-50 years old for women and 26-55 years old for men.
  2. Surrogacy is only legal for intending couples who are unable to conceive a child after five years of trying or for whom pregnancy is medically unsafe or likely to result in life-threatening conditions or serious permanent injury.
  3. The couple must not have any living children in order to receive a certificate of eligibility for surrogacy (biological, adopted, or surrogate). The only circumstances in which this clause would not apply is if their surviving child has a disability, either mental or physical, or if the child has a condition that poses a serious risk of death
  4. Commercial surrogacy, where a surrogate mother is paid beyond reasonable medical expenses and insurance, is prohibited.
  5. Only altruistic surrogacy, where the surrogate mother is a ‘close relative’ of the intending couple and receives no financial reward beyond reasonable medical expenses and insurance, is permitted. The Act does not, however, define what constitutes a “close person” in such circumstances.
  6. The surrogate mother must be a married woman between the ages of 25 and 35, who has already given birth to a healthy child.
  7. The surrogate may only sign up for surrogacy once in her lifetime, but up to three attempts may be undertaken if embryo transfer does not take place.
  8. There can be no biological relationship between the surrogate and the child she carries.
  9. The District Medical Board must issue this indication certificate in favor of the commissioning couple and surrogate.


Amendment 2023 (India)


The recent amendment has opened the door to the assistance of egg and sperm donors if the couple is certified to have a medical condition, eliminating the requirement for both gametes to come from the married couple. However, the couple must still provide at least one gamete to proceed with surrogacy. The recent Act prohibits the following groups from availing of surrogacy services:


  • Couples with one child
  • Foreign nationals, with exceptions for Indian citizens residing abroad
  • Individuals in live-in relationships
  • Single men and women, divorced individuals, and widowers
  • Homosexual couples


The Central government of India recently posted that both gametes need not come from a married couple in case they are certified as suffering from a medical condition.   As per the latest amendment, the couple can have a child born through surrogacy but must have at least one gamete from the intending couple.


The recent Act bars the following groups from accessing surrogacy services:


  • Couples with one child
  • Foreign nationals, except Indian citizens residing abroad
  • Individuals in live-in relationships
  • Single men and women, divorced individuals, and widowers
  • bars homosexual couples



Future Legal Developments



Currently, there is no information about upcoming legislation. However, it’s anticipated that there will be a legal challenge against the discriminatory exclusion of gay individuals from surrogacy services.



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