Can a Single Woman Opt for Surrogacy?
- A single woman can opt for surrogacy in India, but only under specific conditions. The Surrogacy (Regulation) Act, 2021 permits widowed and divorced women between the ages of 35 and 45 years to undergo surrogacy, subject to prescribed legal and medical requirements.
- An unmarried woman who has never been married is not eligible for surrogacy under the existing statutory framework. The law recognises only certain categories of single women as intending women.
- Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 defines an intending woman as an Indian woman who is a widow or divorcee, aged between 35 and 45 years, and who intends to avail herself of surrogacy.
- Commercial surrogacy is prohibited in India. An eligible single woman can undergo only altruistic surrogacy, which does not permit commercial payments to the surrogate mother.
- Widowed and divorced women must use their own eggs and donor sperm for surrogacy. The Surrogacy (Regulation) Amendment Rules, 2024 impose this requirement, even though certain married couples may use donor gametes in specified medical circumstances.
- Medical justification and statutory approvals are necessary before undergoing surrogacy. An eligible woman must obtain the prescribed medical and eligibility certificates and comply with the conditions concerning the surrogate mother.
- A child born through lawful surrogacy has legal rights recognised under the Surrogacy (Regulation) Act, 2021. The legislation provides for the legal status of the child and prohibits abandonment by the intending woman.
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Can a Single Woman Opt for Surrogacy in India?
Yes, a single woman can opt for surrogacy in India if she is a widow or divorcee aged between 35 and 45 years and satisfies the legal and medical conditions prescribed under the Surrogacy (Regulation) Act, 2021.
However, the law does not permit every single woman to undergo surrogacy. An unmarried woman who has never been married is excluded from the definition of an intending woman under Section 2(1)(s) of the Act.
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This distinction is important because the expression single woman may include unmarried, divorced, widowed and separated women in ordinary language. Indian surrogacy law, however, provides eligibility only to specified categories.
For example, a 38-year-old divorced Indian woman may qualify for surrogacy if she satisfies the prescribed medical and legal requirements. In contrast, a 38-year-old woman who has never been married does not qualify merely because she wishes to become a mother through surrogacy.
Similarly, a married woman living separately from her husband does not automatically qualify as an intending woman unless she falls within the statutory definition.
Therefore, the right to undergo surrogacy in India depends on factors such as marital status, age, medical necessity and compliance with statutory requirements.
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What Is Surrogacy under Indian Law?
Surrogacy is an arrangement in which a woman carries and gives birth to a child for an intending couple or intending woman, with the intention of handing over the child after birth.
The Surrogacy (Regulation) Act, 2021 regulates surrogacy arrangements in India. It establishes eligibility conditions for intending parents, intending women, surrogate mothers and medical institutions involved in surrogacy procedures.
The legislation primarily seeks to regulate surrogacy practices, prevent commercial exploitation and protect the interests of surrogate mothers and children born through surrogacy.
Altruistic Surrogacy
Altruistic surrogacy refers to an arrangement in which the surrogate mother does not receive monetary compensation or commercial benefits for carrying the child.
However, the law permits prescribed medical expenses, other authorised expenses and insurance coverage connected with the surrogacy arrangement.
For instance, an eligible widowed woman may undergo altruistic surrogacy through a registered surrogacy clinic after obtaining the required approvals.
Commercial Surrogacy
Commercial surrogacy involves monetary compensation, rewards or other benefits beyond the payments permitted by law.
Commercial surrogacy is prohibited under the Surrogacy (Regulation) Act, 2021.
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Therefore, an intending woman cannot legally enter into a commercial surrogacy arrangement by paying a surrogate mother to carry a child in exchange for financial compensation.
Who Is an Intending Woman under the Surrogacy (Regulation) Act, 2021?
Section 2(1)(s) of the Surrogacy (Regulation) Act, 2021 defines an intending woman as an Indian woman who is a widow or divorcee between the ages of 35 and 45 years and who intends to avail herself of surrogacy.
The definition contains three important requirements.
The Woman Must Be an Indian Woman
The statutory definition specifically refers to an Indian woman.
Therefore, nationality forms an important part of eligibility under the intending-woman category. The provision cannot be interpreted as granting general access to surrogacy to all women irrespective of nationality.
The Woman Must Be Widowed or Divorced
The legislation recognises two categories of single women:
- Widowed women: Women whose husbands have died may qualify for surrogacy, provided they satisfy the remaining statutory requirements.
- Divorced women: Women whose marriages have legally ended through divorce may qualify for surrogacy, subject to the prescribed conditions.
Women who have never been married are not included in the statutory definition.
The Woman Must Be Between 35 and 45 Years Old
The Act establishes a specific age range for intending women.
A widowed or divorced woman must fall within the prescribed age limits to qualify under this category.
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For example, a divorced woman aged 40 may satisfy the age requirement, whereas a divorced woman aged 30 would not.
However, compliance with the age requirement does not automatically establish eligibility. Other medical and procedural conditions must also be fulfilled.
Can an Unmarried Woman Opt for Surrogacy in India?
No, an unmarried woman who has never been married cannot ordinarily opt for surrogacy under the Surrogacy (Regulation) Act, 2021.
The reason is that Section 2(1)(s) restricts the definition of an intending woman to widows and divorcees.
The legislation does not create a general category allowing all unmarried adult women to undergo surrogacy merely because they wish to have children.
This restriction applies even if an unmarried woman is financially independent, medically fit or capable of raising a child without a partner.
The legal position also differs from access to certain assisted reproductive technologies. Eligibility for a particular fertility treatment does not automatically establish eligibility for surrogacy.
Surrogacy is governed by specific statutory conditions that must be independently satisfied.
Can a Woman Who Is Separated but Not Divorced Opt for Surrogacy?
A woman who is separated from her husband but whose marriage has not legally ended does not qualify as a divorcee under Section 2(1)(s).
A judicial separation or informal separation does not, by itself, dissolve a marriage.
Consequently, a separated woman cannot claim eligibility as an intending woman merely on the basis of living independently from her husband.
Can a Divorced Woman Opt for Surrogacy in India?
Yes, a divorced woman can opt for surrogacy in India if she is an Indian woman aged between 35 and 45 years and satisfies the prescribed legal and medical requirements.
Divorce is expressly recognised under the statutory definition of an intending woman.
However, a divorcee must comply with the same regulatory safeguards applicable to surrogacy arrangements.
These include medical justification, prescribed certification, lawful gamete use and compliance with the conditions concerning the surrogate mother.
A divorced woman cannot undergo surrogacy solely because she prefers another woman to carry the pregnancy. The arrangement must satisfy the medical indications and statutory requirements.
For instance, a 39-year-old divorced woman who has a recognised medical condition preventing her from safely carrying a pregnancy may be considered for surrogacy if she meets the other legal conditions.
The final eligibility determination depends on the applicable medical assessments and statutory approvals.
Can a Widowed Woman Opt for Surrogacy in India?
Yes, a widowed woman can undergo surrogacy in India if she meets the conditions prescribed under the Surrogacy (Regulation) Act, 2021.
The law expressly includes widows within the definition of intending women.
However, widowhood alone is insufficient to establish eligibility.
The woman must be an Indian woman aged between 35 and 45 years and must comply with the prescribed medical and legal requirements.
The applicable rules also regulate the use of reproductive material during the procedure.
A widowed woman cannot assume that she may use any available donor egg or other reproductive material without considering the restrictions under the Surrogacy (Regulation) Rules.
Therefore, the legality of the proposed procedure must be assessed before treatment begins.
What Are the Eligibility Criteria for Single Women Seeking Surrogacy?
The eligibility of a single woman is governed by the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022, as amended.
The principal requirements include the following.
Marital Status and Age
The applicant must qualify as an intending woman under Section 2(1)(s).
This means she must be an Indian widow or divorcee aged between 35 and 45 years.
Women who do not meet these requirements cannot ordinarily access surrogacy under this statutory category.
Medical Indication for Surrogacy
Surrogacy is not permitted merely on the basis of personal preference.
The legislation requires a recognised medical indication, assessed in accordance with the applicable rules.
Rule 14 of the Surrogacy (Regulation) Rules, 2022 identifies medical circumstances in which gestational surrogacy may be necessary.
These include:
- Absence or abnormality of the uterus: A woman may require surrogacy where the uterus is absent or affected by a medical condition that makes pregnancy impossible.
- Repeated implantation failure: Surrogacy may be considered in certain cases involving repeated failures of embryo implantation, subject to the prescribed medical criteria.
- Repeated pregnancy losses: Certain medically established conditions involving repeated pregnancy losses may support the need for gestational surrogacy.
- Serious medical conditions: A woman may require surrogacy where pregnancy poses a serious threat to her life or is medically impossible because of a recognised condition.
A medical condition must be evaluated in accordance with the applicable legal and clinical requirements.
Certificate of Medical Indication
The intending woman must obtain the prescribed certificate establishing the medical indication for surrogacy.
The certificate is issued through the designated medical authority in accordance with the statutory procedure.
It provides formal medical justification for the proposed surrogacy arrangement.
Certificate of Eligibility
The intending woman must also obtain the applicable eligibility certification from the appropriate authority.
The certification process examines compliance with the statutory requirements.
Compliance with the Altruistic Surrogacy Requirement
The proposed arrangement must be altruistic rather than commercial.
Payments must remain within the categories permitted under the Act and Rules.
An arrangement involving unlawful compensation or commercial benefits cannot be justified merely because the intending woman otherwise satisfies the eligibility requirements.
Can a Single Woman Use Donor Eggs and Sperm for Surrogacy?
Under the Surrogacy (Regulation) Amendment Rules, 2024, a widowed or divorced woman undergoing surrogacy must use her own eggs and donor sperm.
This requirement is particularly important because it directly affects the reproductive options available to intending women.
Requirement to Use Own Eggs
The 2024 amendment establishes that a single woman falling within the permitted statutory category must use her own eggs.
Consequently, a widowed or divorced woman who cannot produce or use her own eggs may face a legal barrier to surrogacy.
This restriction is significant for women experiencing certain reproductive medical conditions.
Use of Donor Sperm
The amendment permits the use of donor sperm for a qualifying widowed or divorced intending woman.
However, donor sperm must be obtained and used in accordance with the applicable assisted reproductive technology and surrogacy regulations.
Difference Between Intending Couples and Intending Women
The 2024 amendment provides a limited relaxation for intending married couples.
An intending couple may use a donor gamete where the prescribed medical authority certifies that either the husband or wife has a medical condition necessitating its use, subject to the conditions of the amended rules.
However, this relaxation does not extend to widowed and divorced intending women in the same manner.
For single women, the requirement remains the use of their own eggs and donor sperm.
What Is the Legal Procedure for Surrogacy for a Single Woman?
An eligible single woman must complete the prescribed legal and medical processes before undergoing surrogacy.
Although administrative procedures may vary depending on the competent authority, the principal stages are as follows.
Step 1: Establish Statutory Eligibility
The woman must first establish that she qualifies as an intending woman.
Her age, nationality and marital status must satisfy Section 2(1)(s) of the Act.
Relevant documents may include proof of identity, age and marital status.
Step 2: Obtain Medical Evaluation
A medical assessment must determine whether the proposed surrogacy falls within the recognised medical indications.
The evaluation must comply with the requirements of the Surrogacy (Regulation) Rules, 2022.
Step 3: Obtain the Required Certificates
The applicable certificate of medical indication and certificate of eligibility must be obtained from the competent authorities.
These certificates establish whether the legal requirements for undergoing surrogacy have been satisfied.
Step 4: Identify an Eligible Surrogate Mother
The proposed surrogate mother must meet the conditions prescribed by law.
These include requirements concerning age, previous marriage, having a child of her own and medical and psychological fitness.
The legislation also restricts the number of occasions on which a woman may act as a surrogate mother.
Step 5: Obtain Consent and Complete Legal Formalities
The surrogate mother’s informed written consent must be obtained in the prescribed manner.
The required insurance coverage, parentage and custody order, and other statutory formalities must also be completed.
Step 6: Undergo Treatment Through a Registered Clinic
Surrogacy procedures must be carried out through a clinic registered and authorised under the applicable regulatory framework.
The clinic must comply with the statutory requirements governing medical procedures, records and reproductive material.
What Are the Legal Rights of a Surrogate Mother?
The Surrogacy (Regulation) Act, 2021 provides safeguards for surrogate mothers.
These protections remain applicable even where the intending parent is a single woman.
Right to Informed Consent
Section 6 requires the surrogate mother’s informed written consent before the surrogacy procedure.
Consent must be obtained after the relevant medical and procedural information has been explained.
The surrogate mother also has a statutory right to withdraw her consent before implantation of the embryo.
Protection Against Commercial Exploitation
Commercial surrogacy is prohibited.
The law seeks to prevent arrangements in which women are commercially exploited for reproductive purposes.
Only payments and benefits permitted by the statutory framework are lawful.
Insurance and Medical Protection
The intending woman must comply with the applicable insurance requirements for the surrogate mother.
These safeguards address prescribed medical expenses and risks connected with the surrogacy arrangement.
The surrogate mother’s medical and psychological fitness must also be established in accordance with the law.
What Are the Rights of a Child Born Through Surrogacy?
The Surrogacy (Regulation) Act, 2021 recognises the legal status of children born through surrogacy.
Section 8 provides that a child born through a surrogacy procedure is deemed to be the biological child of the intending couple or intending woman and is entitled to the rights and privileges available to a natural child under the applicable law.
This provision is important where the intending parent is a widowed or divorced woman.
The legal recognition of parentage is not dependent on the presence of a husband.
Legal Recognition of Motherhood
Where surrogacy is lawfully undertaken by an intending woman, the Act recognises the resulting parent-child relationship.
The statutory framework also requires a parentage and custody order from the competent Magistrate as part of the surrogacy approval process.
Protection Against Abandonment
Section 7 prohibits an intending couple or intending woman from abandoning a child born through surrogacy on grounds such as disability, genetic defect, birth defect, medical condition or the birth of more than one child.
The statutory protection prevents rejection of a child on these prohibited grounds.
Rights and Privileges of the Child
A child born through surrogacy is entitled to legal recognition under Section 8.
Questions concerning maintenance, succession and inheritance are governed by the applicable laws, read with the statutory recognition of parentage.
What Has the Supreme Court Said About Surrogacy for Single Women?
The constitutional and legal framework governing surrogacy has been examined in proceedings before the Supreme Court of India.
An important development concerns the use of donor gametes in surrogacy arrangements.
Arun Muthuvel v Union of India
In Arun Muthuvel v Union of India and connected proceedings, the Supreme Court considered disputes involving restrictions on donor gametes under the surrogacy regulatory framework.
The litigation concerned the relationship between medical necessity and the restrictions introduced through subordinate legislation.
In March 2023, the regulatory framework was amended to restrict the use of donor gametes.
These restrictions created difficulties for certain intending couples who required donor eggs or sperm because of medical conditions.
The Supreme Court considered applications seeking relief from the restrictions.
Subsequently, the Surrogacy (Regulation) Amendment Rules, 2024 introduced a limited relaxation concerning donor gametes for intending couples.
In its order dated 23 February 2024, the Supreme Court recorded the amended position and addressed the circumstances of applicants seeking permission to proceed.
However, these proceedings did not establish a general statutory right permitting every unmarried woman to undergo surrogacy.
Constitutional Issues Concerning Single Women
The exclusion of never-married women raises important questions about equality, reproductive autonomy and personal liberty.
Article 14 of the Constitution of India guarantees equality before the law and equal protection of the laws.
Article 21 protects life and personal liberty and has been interpreted by the Supreme Court to include important aspects of privacy, dignity and reproductive choice.
The restrictions on unmarried women may therefore be examined in light of constitutional principles.
However, reproductive autonomy and statutory eligibility for surrogacy are distinct legal questions.
The recognition of reproductive autonomy does not, by itself, eliminate the eligibility requirements established under the Surrogacy (Regulation) Act, 2021.
A legal argument challenging the constitutionality of a restriction must be distinguished from the law applicable unless that restriction is invalidated or otherwise modified by a competent court.
Difference Between Unmarried, Divorced and Widowed Women under Surrogacy Law
The following table explains how the Surrogacy (Regulation) Act, 2021 treats different categories of single women.
| Basis | Never-Married Woman | Divorced Woman | Widowed Woman |
| Recognition as an intending woman | No | Yes | Yes |
| Eligibility for surrogacy | Not ordinarily permitted | Permitted subject to conditions | Permitted subject to conditions |
| Age requirement | Not applicable under the intending-woman category | 35–45 years | 35–45 years |
| Medical justification | Does not overcome statutory ineligibility | Required | Required |
| Use of own eggs | Does not establish eligibility | Required under the 2024 amendment | Required under the 2024 amendment |
| Use of donor sperm | Does not establish eligibility | Permitted subject to regulations | Permitted subject to regulations |
| Commercial surrogacy | Prohibited | Prohibited | Prohibited |
| Required statutory approvals | No ordinary eligibility pathway | Required | Required |
The central distinction is marital status. Indian surrogacy legislation recognises qualifying widowed and divorced women but does not provide an equivalent statutory entitlement to never-married women.
Can a Single Woman Become a Mother Through Other Legal Options?
The exclusion of never-married women from surrogacy does not mean that Indian law prohibits single women from becoming mothers through every available legal route.
However, alternative routes are governed by separate legal frameworks.
Adoption
Adoption is one legal option available to eligible single women in India.
The Juvenile Justice (Care and Protection of Children) Act, 2015 and the applicable adoption regulations govern adoption through the relevant statutory framework.
Eligibility depends on factors such as age, marital status, suitability and the requirements relating to the child.
Adoption is legally distinct from surrogacy and involves a separate process for establishing the parent-child relationship.
Assisted Reproductive Technology
Certain assisted reproductive technology procedures are regulated under the Assisted Reproductive Technology (Regulation) Act, 2021.
The legal framework concerning assisted reproductive technology is not identical to the framework governing surrogacy.
For example, the use of donor sperm for a permissible fertility procedure does not automatically provide permission to engage a surrogate mother.
A woman may satisfy the requirements for a particular assisted reproductive technology procedure while remaining ineligible for surrogacy under the Surrogacy (Regulation) Act.
Therefore, eligibility must be examined separately under the legislation applicable to the proposed medical procedure.
Why Does Indian Law Restrict Surrogacy for Single Women?
The Surrogacy (Regulation) Act, 2021 establishes a restrictive model of surrogacy rather than allowing unrestricted access to all individuals.
The regulatory framework is intended to prevent commercial exploitation, protect surrogate mothers and children, and ensure that surrogacy procedures are conducted within prescribed medical and legal conditions.
The inclusion of widows and divorcees creates a limited category of single women who may access surrogacy.
However, the exclusion of never-married women has generated broader questions about whether marital status should determine access to reproductive assistance.
Equality and Marital Status
One important constitutional issue concerns the different treatment of women based on marital status.
A widowed or divorced woman may qualify for surrogacy, whereas a never-married woman of the same age, having a similar medical condition, does not.
This distinction raises questions concerning the relationship between statutory classification and Article 14 of the Constitution.
Reproductive Autonomy
Reproductive autonomy concerns an individual’s ability to make decisions relating to reproduction and family life.
Restrictions on surrogacy may therefore be examined in the context of privacy, dignity and personal liberty under Article 21.
At the same time, surrogacy involves the interests and rights of another woman who carries the pregnancy.
The regulation of surrogacy consequently involves considerations relating to reproductive choice, medical ethics, bodily autonomy and protection against exploitation.
These constitutional considerations remain relevant to legal discussions concerning the scope of permissible surrogacy arrangements.
Conclusion
A single woman can legally opt for surrogacy in India only if she falls within the category of an intending woman recognised under the Surrogacy (Regulation) Act, 2021.
Section 2(1)(s) permits Indian widowed and divorced women aged between 35 and 45 years to seek surrogacy, subject to the prescribed medical and legal requirements. Women who have never been married are not included within this statutory category.
Eligible intending women must undergo altruistic surrogacy, obtain the required certificates, comply with the conditions applicable to surrogate mothers and follow the restrictions concerning reproductive material. Under the Surrogacy (Regulation) Amendment Rules, 2024, widowed and divorced intending women must use their own eggs and donor sperm.
The legal framework also protects surrogate mothers through informed consent, medical safeguards and restrictions on commercial exploitation. Children born through lawful surrogacy receive statutory recognition and protection.
Although the exclusion of never-married women raises questions concerning equality and reproductive autonomy, these constitutional considerations do not automatically remove the existing statutory restrictions.
Thus, surrogacy is legally available to certain single women in India, but it is not a general reproductive option available to every unmarried woman.
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