Infertility is one of the reasons some individuals and couples may consider assisted reproductive options to start their family. In certain situations, a person may be unable to carry a pregnancy because of the absence or abnormalities of the uterus, medical conditions that make pregnancy unsafe, or other prescribed medical indications.

Surrogacy is one such option. In surrogacy, a woman, known as the surrogate mother, carries and gives birth to a child for an intended parent or intended parents who meet the applicable medical and legal requirements.

In India, surrogacy is regulated by specific laws and is permitted only under defined circumstances. Commercial surrogacy is prohibited, while altruistic surrogacy is permitted subject to the requirements of the applicable law.

Therefore, anyone considering surrogacy in India should understand the medical process, eligibility requirements and legal framework before proceeding.

What Is Surrogacy?

Surrogacy is an arrangement in which a woman carries a pregnancy and gives birth to a child with the intention of handing over the child to the intended parent or parents after birth.

Under India’s legal framework, the permitted form of surrogacy is gestational surrogacy, where the surrogate mother carries an embryo implanted in her uterus and is not genetically related to the child.

Surrogacy should not be considered simply as an alternative to infertility treatment. It is generally considered when there is a specific medical indication that makes carrying a pregnancy difficult, unsafe or impossible and when the applicable legal requirements are fulfilled.

Surrogacy Process in India

The surrogacy process in India is regulated and involves medical, legal and administrative requirements. The exact process may vary depending on the individual’s circumstances and the requirements of the appropriate authorities.

The general process may include the following steps:

1. Medical Evaluation

The intended parent or parents first undergo a detailed medical assessment to determine whether there is a medical indication for gestational surrogacy.

A District Medical Board may issue a medical indication certificate where the applicable requirements are satisfied. The law requires appropriate certification and approval before a surrogacy procedure can be undertaken.

2. Checking Legal Eligibility

The intended parent or parents must meet the eligibility requirements prescribed under the Surrogacy (Regulation) Act, 2021 and applicable rules.

This may involve documentation related to marital status, age, medical condition, existing children and other prescribed requirements.

3. Obtaining the Required Certificates

The applicable authorities issue the required certificates and approvals after verifying that the statutory conditions have been fulfilled.

Depending on the case, this can include an essentiality certificate and an eligibility certificate.

4. Identifying an Eligible Surrogate Mother

The intended couple or intending woman must approach the appropriate authority with a willing woman who agrees to act as the surrogate mother.

The surrogate mother must satisfy the eligibility requirements prescribed under the law. She must also undergo the required medical and psychological evaluation.

5. Medical and Psychological Screening

The surrogate mother undergoes appropriate medical evaluation to determine whether she is medically and psychologically fit for the procedure and pregnancy.

The law requires a certificate of medical and psychological fitness from a registered medical practitioner.

6. Insurance Coverage

Insurance protection for the surrogate mother is an important part of the regulated process.

The law requires insurance coverage for the surrogate mother for the prescribed period, including coverage for pregnancy-related and postpartum complications. The Surrogacy Rules specify a period of 36 months for the required coverage.

7. Creation and Transfer of the Embryo

Once the required medical and legal conditions have been fulfilled, assisted reproductive procedures can be performed.

In gestational surrogacy, an embryo is created using assisted reproductive technology and subsequently transferred into the uterus of the surrogate mother.

The surrogate mother does not provide her own egg in the permitted gestational surrogacy arrangement under Indian law.

8. Pregnancy Monitoring

Following embryo transfer and confirmation of pregnancy, the surrogate mother receives regular medical care throughout pregnancy.

Routine examinations, scans and other investigations may be performed according to the treating doctor’s recommendations.

9. Delivery and Legal Documentation

After the birth of the child, the required legal and administrative procedures are completed in accordance with the applicable law.

Importantly, the child born through a permitted surrogacy procedure is deemed to be the biological child of the intending couple or intending woman under the Surrogacy (Regulation) Act, 2021 and is entitled to the rights and privileges available to a natural child under applicable law.

Surrogacy Laws in India

Surrogacy in India is regulated primarily by the Surrogacy (Regulation) Act, 2021. The Act came into force on January 25, 2022.

The framework was introduced to regulate surrogacy procedures, protect the interests of surrogate mothers and children, and prevent exploitation and commercialisation of surrogacy.

Some important provisions include:

Commercial Surrogacy Is Prohibited

Commercial surrogacy is prohibited in India.

Under the Act, altruistic surrogacy means an arrangement in which the surrogate mother does not receive monetary payment, fees, remuneration or financial incentives, apart from permitted medical expenses, prescribed expenses and insurance coverage.

Therefore, surrogacy should not be described as a profession or as a source of financial incentives for the surrogate mother.

Gestational Surrogacy Is Permitted Under Defined Conditions

The law permits gestational surrogacy when there is a medical indication requiring it and the applicable legal conditions are satisfied.

The surrogate mother must receive information about the known side effects and after-effects of the procedure and provide written informed consent in a language she understands.

She also has the option to withdraw her consent before the embryo is implanted in her uterus.

The Child Cannot Be Abandoned

The intending couple or intending woman cannot abandon a child born through a surrogacy procedure because of genetic defects, birth defects, medical conditions, sex of the child or other reasons specified under the law.

Who Can Opt for Surrogacy in India?

Surrogacy in India is not available to everyone who wants to have a child. Eligibility is determined according to the Surrogacy (Regulation) Act, 2021 and applicable rules.

The law defines an intending couple as a couple with a medical indication necessitating gestational surrogacy. It also recognises an intending woman as an Indian woman who is a widow or divorcee between 35 and 45 years of age who intends to avail surrogacy.

For an intending couple, the Act specifies eligibility requirements including prescribed age criteria and requirements relating to surviving children, subject to specified exceptions.

Therefore, being single, having infertility or having failed IVF cycles does not automatically make a person eligible for surrogacy in India.

Eligibility should be assessed on the basis of the current legal requirements and the individual’s medical circumstances.

Who Can Be a Surrogate Mother in India?

The law also specifies eligibility requirements for a surrogate mother.

Under the Act, a surrogate mother must be:

An ever-married woman
A woman who has a child of her own
Between 25 and 35 years of age on the day of implantation
A willing participant in the surrogacy process
Medically and psychologically fit for surrogacy

The surrogate mother cannot provide her own egg or oocyte for the surrogacy procedure and cannot act as a surrogate mother more than once in her lifetime, subject to the prescribed rules regarding attempts.

Types of Surrogacy

Surrogacy is commonly classified into two types based on whether the surrogate has a genetic connection with the child.

1. Gestational Surrogacy

In gestational surrogacy, an embryo created through assisted reproductive technology is transferred into the uterus of the surrogate mother.

The surrogate mother does not provide the egg and therefore does not have a genetic relationship with the child.

This is the form of surrogacy recognised under India’s current legal framework when the applicable conditions are satisfied.

2. Traditional Surrogacy

In traditional surrogacy, the surrogate mother’s own egg is used to create the pregnancy. Therefore, the surrogate has a genetic relationship with the child.

Traditional surrogacy may be discussed as a general medical classification, but it should not be presented as an available surrogacy option in India, because India’s legal framework requires the permitted surrogate mother not to provide her own gametes.

Medical Conditions That May Lead to Surrogacy

Surrogacy may be considered when pregnancy cannot be carried safely or is not possible because of a prescribed medical indication.

Examples may include:

Absence of the uterus
Certain uterine abnormalities
Medical conditions that make pregnancy unsafe
Certain conditions affecting the ability to carry a pregnancy
Other medical indications specified under the applicable regulations

Repeated IVF failure alone should not be presented as an automatic indication for surrogacy. A fertility specialist and the appropriate medical authority must assess the individual’s circumstances.

Medical Screening Before Surrogacy

Medical evaluation is important for both the intended parent or parents and the surrogate mother.

Depending on individual circumstances, evaluation may include:

Reproductive health assessment
General health evaluation
Infectious disease screening
Relevant blood tests
Uterine assessment where required
Psychological evaluation
Other investigations recommended by the treating medical team

The purpose of these assessments is to identify potential risks and determine whether the individuals are medically suitable for the process.

Emotional and Psychological Considerations

Surrogacy can be emotionally challenging for intended parents as well as the surrogate mother.

The process can involve medical procedures, pregnancy-related concerns, legal responsibilities and emotional expectations.

Counselling and appropriate psychological support can help individuals understand the process and prepare for the emotional challenges that may arise during treatment and pregnancy.

It is important for intended parents and the surrogate mother to have a clear understanding of their respective roles, responsibilities and rights before proceeding.

Is Commercial Surrogacy Legal in India?

No. Commercial surrogacy is prohibited in India.

India permits surrogacy only within the legal framework of altruistic surrogacy. The surrogate mother cannot receive commercial remuneration or financial incentives for carrying the pregnancy. Permitted medical expenses, prescribed expenses and insurance coverage are treated separately under the law.

What Is the Cost of Surrogacy in India?

The overall expense associated with a surrogacy journey can vary depending on the medical treatment required and the individual circumstances.

Potential expenses may include:

Medical consultations
Diagnostic tests
Assisted reproductive procedures
Medicines
Embryology-related procedures
Pregnancy monitoring
Delivery-related medical care
Insurance
Other permitted medical and administrative expenses

Because commercial payment to a surrogate mother is prohibited, the cost of surrogacy in India should not be described as a payment made to the surrogate for her services.

Anyone considering surrogacy should discuss the expected medical and permitted expenses with the treating fertility centre and seek appropriate legal guidance.

Surrogacy in India vs Other Countries

Surrogacy laws differ significantly across countries. Some countries permit altruistic surrogacy, while others allow commercial arrangements under specific conditions. Some countries restrict surrogacy to their citizens or residents, while others have additional requirements.

Therefore, international surrogacy should never be planned based only on information available online. Country-specific medical and legal advice is important before making a decision.

Important Things to Consider Before Surrogacy

Before proceeding with surrogacy, intended parents should consider:

Whether they meet the current legal eligibility criteria
Whether there is a medical indication for surrogacy
The medical risks associated with pregnancy
The health and wellbeing of the surrogate mother
Required insurance coverage
Required documentation and approvals
Emotional and psychological considerations
Expected medical expenses
Legal rights and responsibilities
The applicable rules and regulations

Because the legal framework can be updated through amendments and regulations, it is important to verify the current requirements before beginning the process. currently lists the Surrogacy Rules, 2022 and subsequent amendments/regulations under the Act.

Conclusion

Surrogacy can provide an option for individuals and couples who cannot safely carry a pregnancy because of certain medical conditions. However, it is a complex process involving medical treatment, pregnancy care, psychological considerations and legal requirements.

In India, surrogacy is strictly regulated under the Surrogacy (Regulation) Act, 2021. Commercial surrogacy is prohibited, while altruistic gestational surrogacy is permitted only when the prescribed medical and legal conditions are fulfilled.

Anyone considering surrogacy should first undergo a detailed medical evaluation and understand the applicable eligibility requirements. Consulting a qualified fertility specialist and obtaining appropriate legal advice can help intended parents make an informed decision.

If you are exploring assisted reproductive treatments such as IVF, IUI or ICSI, consult a qualified fertility specialist to understand which treatment may be appropriate for your individual situation.

Frequently Asked Questions

1. Is surrogacy legal in India?

Yes. Surrogacy is legal in India under a regulated framework. However, only surrogacy arrangements that meet the requirements of the Surrogacy (Regulation) Act, 2021 and applicable rules are permitted. Commercial surrogacy is prohibited.

2. Is commercial surrogacy legal in India?

No. Commercial surrogacy is prohibited in India. The permitted framework is altruistic surrogacy, under which the surrogate mother cannot receive commercial remuneration or financial incentives, apart from permitted medical and prescribed expenses and insurance coverage.

3. Who can be a surrogate mother in India?

The Act specifies that a surrogate mother must generally be an ever-married woman who has a child of her own and is between 25 and 35 years of age on the day of implantation. She must also meet the prescribed medical and psychological fitness requirements and provide informed consent.

4. Does the surrogate mother have the baby’s DNA?

In gestational surrogacy, the surrogate mother does not provide the egg and therefore is not genetically related to the child. The embryo is created through assisted reproductive technology and transferred to her uterus.

5. Can a surrogate mother use her own egg in India?

No. Under India’s Surrogacy (Regulation) Act, a surrogate mother cannot provide her own gametes for the surrogacy procedure.

6. Is IVF required for surrogacy?

Gestational surrogacy involves transferring an embryo into the surrogate mother’s uterus. Therefore, assisted reproductive technology is used to create the embryo before transfer.

7. Can single people opt for surrogacy in India?

Eligibility depends on the specific legal category and applicable requirements. The law specifically recognises an intending woman who is an Indian widow or divorcee between 35 and 45 years of age. Surrogacy eligibility should therefore be assessed according to the current statutory requirements rather than assuming that every single person is eligible.

8. Can same-sex couples opt for surrogacy in India?

Surrogacy eligibility in India is governed by the definitions and conditions specified in the Surrogacy (Regulation) Act, 2021 and applicable rules. It should not be assumed that same-sex couples are eligible under the current framework. Specific legal advice should be obtained based on the individual’s circumstances.

9. Can intended parents abandon a child born through surrogacy?

No. The law prohibits the intending couple or intending woman from abandoning a child born through a surrogacy procedure, including because of genetic or birth defects, medical conditions, sex of the child or other specified reasons.

10. Is the child born through surrogacy legally considered the child of the intended parents?

Under the Surrogacy (Regulation) Act, 2021, a child born through a permitted surrogacy procedure is deemed to be the biological child of the intending couple or intending woman and is entitled to the applicable rights and privileges of a natural child.

The surrogate mother has the right to withdraw her consent before the implantation of the embryo in her uterus, subject to the provisions of the law.

12. Do I need legal advice before considering surrogacy?

Yes. Surrogacy involves specific legal requirements, documentation, eligibility conditions and responsibilities. A qualified legal professional can explain the requirements applicable to your individual circumstances.

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