Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021 is an Indian law that regulates surrogacy arrangements, prohibits commercial surrogacy and protects the rights of surrogate mothers and children born through surrogacy. It establishes conditions under which surrogacy can be legally performed in India.
The important provisions of the Surrogacy (Regulation) Act, 2021 are:
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- Altruistic Surrogacy Is Legal: India permits altruistic surrogacy, where a surrogate mother does not receive monetary compensation except for prescribed medical expenses, insurance coverage and other permitted expenses.
- Commercial Surrogacy Is Prohibited: Paying a woman to carry a child for commercial purposes is illegal. The Act provides imprisonment and fines for persons involved in prohibited commercial surrogacy arrangements.
- Eligibility Requirements Apply: Married intending couples must satisfy prescribed age, marital and medical conditions. Certain Indian widows and divorcees are also eligible under the Act.
- Surrogate Mothers Must Meet Specific Conditions: A surrogate mother must be an ever-married woman, aged between 25 and 35 years, who has a child of her own. She can act as a surrogate mother only once in her lifetime.
- Medical Approval Is Necessary: Surrogacy generally requires a certificate of essentiality and a certificate of eligibility from the competent authorities. Medical necessity must be established in accordance with the Act and Rules.
- Children Have Legal Rights: A child born through surrogacy is legally recognised as the 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.
- Strict Penalties Apply: Commercial surrogacy, exploitation of surrogate mothers, unauthorised surrogacy procedures and other statutory violations can attract imprisonment, fines and regulatory action.
Contents
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What Is the Surrogacy (Regulation) Act, 2021?
The Surrogacy (Regulation) Act, 2021 is a central legislation enacted to regulate surrogacy services in India. It received presidential assent on 25 December 2021 and came into force on 25 January 2022.
Before the enactment of this legislation, India did not have a comprehensive central statutory framework specifically regulating surrogacy arrangements. This raised concerns regarding commercialisation, exploitation of economically vulnerable women, medical practices and the legal status of children born through surrogacy.
The Act establishes a regulatory framework governing intending parents, surrogate mothers, surrogacy clinics and medical professionals.
It also provides for the establishment of regulatory authorities to supervise surrogacy practices and ensure compliance with statutory requirements.
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The legislation must be read alongside the Surrogacy (Regulation) Rules, 2022, subsequent amendments and the Assisted Reproductive Technology (Regulation) Act, 2021, where applicable.
What Is Surrogacy Under the Act?
Surrogacy is an arrangement in which a woman agrees to carry and give birth to a child for an intending couple or intending woman, with the intention of handing over the child after birth.
Under Section 2 of the Surrogacy (Regulation) Act, 2021, surrogacy involves a woman bearing a child for an intending couple or intending woman, where the child is to be handed over to them after birth.
Surrogacy is generally considered when certain medical conditions make it impossible or medically unsuitable for an intended mother to carry a pregnancy.
The Act recognises two important categories of surrogacy.
Altruistic Surrogacy
Altruistic surrogacy refers to a surrogacy arrangement in which the surrogate mother does not receive monetary compensation or financial rewards beyond legally permitted expenses.
These include prescribed medical expenses, insurance coverage and other permitted expenses relating to the pregnancy and surrogacy procedure.
The purpose of altruistic surrogacy is to allow medically necessary surrogacy while preventing the commercial exploitation of women.
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Commercial Surrogacy
Commercial surrogacy refers to arrangements involving payments, rewards or financial benefits beyond the expenses permitted under the legislation.
Such arrangements are prohibited in India.
For example, an arrangement where a surrogate mother is promised a substantial payment specifically for carrying and delivering a child, beyond the legally permitted expenses, may amount to commercial surrogacy.
The distinction between altruistic and commercial surrogacy is central to the Act.
Objectives of the Surrogacy (Regulation) Act, 2021
The Act seeks to establish a regulated system of surrogacy while protecting the interests of everyone involved.
Its principal objectives include the following.
Preventing Commercial Exploitation
The Act prohibits commercial surrogacy to reduce the possibility of women being exploited for reproductive purposes.
It also seeks to prevent intermediaries and clinics from treating surrogacy as a commercial activity involving the buying or selling of reproductive services.
Protecting Surrogate Mothers
The legislation establishes eligibility requirements, informed consent procedures and medical safeguards for surrogate mothers.
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It also requires insurance coverage and restricts the number of times a woman may act as a surrogate mother.
Protecting Children Born through Surrogacy
The Act recognises the legal status of children born through surrogacy and prohibits their abandonment by intending parents.
These provisions are intended to prevent disputes over parentage and protect children from discrimination.
Regulating Surrogacy Clinics
The Act requires surrogacy clinics to obtain registration and comply with applicable medical and regulatory standards.
It establishes authorities responsible for registration, inspection and enforcement.
Who Is Eligible for Surrogacy in India?
The Surrogacy (Regulation) Act, 2021 places specific conditions on persons seeking surrogacy.
Eligibility depends on marital status, age, medical necessity and other statutory requirements.
Eligibility of an Intending Couple
Under Section 4, an intending couple must satisfy the prescribed eligibility conditions.
The principal requirements include:
- Marital Status: The intending couple must be legally married, and the woman must be between 23 and 50 years of age, while the man must be between 26 and 55 years of age.
- Marriage Duration: The couple must ordinarily have been married for at least five years before seeking surrogacy.
- Medical Necessity: The couple must establish the prescribed medical indication necessitating gestational surrogacy and obtain the required certification.
- Existing Children: The couple must generally not have a surviving child, whether biological, adopted or born through surrogacy. Statutory exceptions apply where an existing child has specified serious medical conditions or disabilities.
- Required Certification: The couple must obtain the relevant certificates of essentiality and eligibility from the competent authorities.
Merely being unable to conceive naturally does not automatically establish eligibility. The prescribed medical conditions and certification requirements must also be satisfied.
Can a Single Woman Opt for Surrogacy?
A single woman may opt for surrogacy in India only if she falls within the category of an intending woman recognised under the Act.
The legislation defines an intending woman as an Indian woman who is a widow or divorcee between 35 and 45 years of age and intends to avail herself of surrogacy.
Therefore, the Act does not provide general eligibility to every unmarried woman seeking surrogacy.
An eligible intending woman must also satisfy the applicable medical, certification and other statutory requirements.
Can a Single Man Opt for Surrogacy?
A single man is not included among the eligible categories of intending parents under the Surrogacy (Regulation) Act, 2021.
The statutory framework primarily recognises eligible intending married couples and intending women who satisfy the prescribed conditions.
Consequently, a single man cannot ordinarily obtain surrogacy services under the Act.
Who Can Become a Surrogate Mother in India?
Section 4 lays down specific eligibility requirements for a surrogate mother.
The purpose of these conditions is to regulate participation in surrogacy and reduce health risks and exploitation.
A woman must satisfy the following requirements:
- Age Requirement: The surrogate mother must be between 25 and 35 years of age on the day of implantation.
- Marital History: She must be an ever-married woman, meaning she must have been married at some point.
- Existing Child: She must have a child of her own.
- Voluntary Participation: She must willingly agree to participate in the surrogacy arrangement and provide informed consent.
- Medical Fitness: She must obtain the prescribed medical and psychological fitness certification.
- One-Time Participation: A woman cannot act as a surrogate mother more than once during her lifetime.
The legislation also prohibits the surrogate mother from providing her own gametes for the surrogacy procedure.
This means that the surrogate mother carries the pregnancy but cannot contribute her own egg to create the embryo used in that arrangement.
What Are the Conditions for Legal Surrogacy Under Section 4?
Section 4 is one of the most important provisions of the Surrogacy (Regulation) Act, 2021.
It establishes the conditions under which a surrogacy procedure may lawfully be undertaken.
Certificate of Essentiality
A certificate of essentiality is required before the surrogacy procedure can proceed.
The statutory requirements include:
- A certificate from the District Medical Board confirming the prescribed medical indication necessitating gestational surrogacy.
- An order concerning the parentage and custody of the child to be born through surrogacy, issued by the competent Magistrate.
- Insurance coverage for the surrogate mother for the prescribed period of 36 months, covering postpartum delivery complications and other applicable medical expenses.
These requirements are intended to ensure that the surrogacy arrangement has a valid medical and legal foundation.
Certificate of Eligibility
The intending couple or intending woman must also obtain a certificate of eligibility.
This certificate concerns compliance with the statutory requirements relating to matters such as age, marital status and existing children.
A certificate of eligibility is also required for the surrogate mother.
The certificates are issued through the designated authorities in accordance with the Act and Rules.
Is Commercial Surrogacy Legal in India?
No. Commercial surrogacy is prohibited under the Surrogacy (Regulation) Act, 2021.
The legislation permits surrogacy only under the legally recognised altruistic framework.
Commercial surrogacy arrangements involving payments or rewards beyond the permissible expenses are unlawful.
The prohibition extends beyond direct payments to surrogate mothers. It also covers various prohibited commercial activities connected with surrogacy, including commercial exploitation and certain dealings involving human embryos or gametes.
However, payment of legally permitted medical expenses and insurance premiums does not, by itself, make an arrangement commercial surrogacy.
The distinction depends on the nature and purpose of the payment and the applicable statutory provisions.
Can Donor Eggs or Sperm Be Used in Surrogacy?
The use of donor gametes in surrogacy is regulated by the Surrogacy (Regulation) Rules and subsequent amendments.
The Surrogacy (Regulation) Amendment Rules, 2024, notified on 21 February 2024, introduced an important change concerning donor gametes.
Donor Gametes for Intending Couples
Under the amended framework, donor gametes may be used where the District Medical Board certifies that either the husband or wife has a medical condition necessitating the use of donor gametes.
However, at least one gamete must come from the intending couple.
This means that an intending couple cannot generally use both donor sperm and donor eggs for surrogacy under this provision.
Donor Gametes for an Intending Woman
For a single intending woman who is a widow or divorcee, the rules prescribe the use of her own eggs and donor sperm.
Accordingly, the permitted use of donor gametes differs between intending couples and eligible intending women.
These provisions must also be understood in connection with the applicable assisted reproductive technology regulations.
What Are the Rights of a Surrogate Mother?
The Act provides several important safeguards for surrogate mothers, particularly concerning consent, medical care and protection against exploitation.
Right to Informed Consent
Section 6 requires the surrogate mother’s written informed consent before the procedure.
The known side effects and after-effects of the surrogacy procedure must be explained to her before consent is obtained.
The surrogate mother also has the right to withdraw her consent before implantation of the embryo.
This provision recognises the importance of voluntary participation and informed medical decision-making.
Right to Insurance Coverage
The intending couple or intending woman must provide insurance coverage for the surrogate mother for 36 months.
The coverage is intended to address prescribed medical expenses and complications associated with pregnancy and childbirth.
The insurance requirement is an important statutory safeguard because surrogacy may involve medical risks extending beyond delivery.
Protection Against Exploitation
The Act prohibits commercial exploitation of surrogate mothers.
It also imposes restrictions on prohibited medical practices and unauthorised surrogacy arrangements.
These protections are supported by criminal penalties and regulatory oversight.
What Are the Rights of Children Born through Surrogacy?
The Surrogacy (Regulation) Act, 2021 contains specific provisions protecting children born through surrogacy.
Legal Recognition of Parentage
Section 8 provides that a child born through surrogacy is deemed to be the biological child of the intending couple or intending woman.
The child is entitled to the rights and privileges available to a natural child under the applicable law.
This provision gives legal recognition to the parent-child relationship created through a lawful surrogacy arrangement.
Protection Against Abandonment
Section 7 prohibits intending parents from abandoning a child born through surrogacy on specified grounds.
These include disability, genetic defects, sex, multiple births and other reasons covered by the provision.
For example, intending parents cannot lawfully reject a child merely because the child is born with a disability.
The statutory restriction seeks to ensure that children born through surrogacy are not deprived of parental responsibility because of circumstances connected with their birth.
How Are Surrogacy Clinics Regulated?
The Act creates a registration and regulatory framework for clinics providing surrogacy services.
Sections 11 to 14 deal with the registration and regulation of surrogacy clinics.
Mandatory Registration
Surrogacy clinics must obtain registration under the applicable statutory framework.
An unregistered clinic cannot lawfully undertake regulated surrogacy procedures.
The registration system helps authorities monitor clinics and ensure compliance with medical and legal requirements.
Duties of Surrogacy Clinics
Registered clinics are required to comply with prescribed standards concerning medical procedures, records and professional conduct.
Clinics must also follow applicable restrictions relating to surrogacy practices and the use of reproductive material.
Failure to comply with these obligations may lead to suspension or cancellation of registration and other statutory consequences.
What Authorities Are Established Under the Act?
The Surrogacy (Regulation) Act, 2021 provides for different authorities responsible for administration, supervision and enforcement.
National Assisted Reproductive Technology and Surrogacy Board
The National Board performs functions relating to policy guidance, implementation and supervision of the regulatory framework.
It advises the Central Government on matters concerning surrogacy and assisted reproductive technology.
It also plays a role in reviewing implementation and promoting appropriate standards.
State Assisted Reproductive Technology and Surrogacy Boards
State Boards perform functions at the state level.
They assist in the implementation of the legislation and coordinate with relevant authorities concerning surrogacy regulation.
Appropriate Authorities
Sections 35 to 37 deal with the appointment and functions of appropriate authorities.
These authorities perform important regulatory responsibilities, including registration-related functions, inspections, investigation of complaints and enforcement of statutory requirements.
What Are the Punishments Under the Surrogacy (Regulation) Act, 2021?
The Act prescribes criminal penalties for various prohibited activities.
These penalties seek to prevent commercial exploitation, unlawful medical practices and violations of the regulatory framework.
Punishment Under Section 38
Section 38 addresses serious offences involving prohibited commercial activities and exploitation connected with surrogacy.
Specified offences may attract imprisonment extending to ten years and a fine extending to ₹10 lakh.
The provision covers several prohibited activities involving commercial surrogacy, exploitation and unlawful dealings in reproductive material.
Punishment Under Section 39
Section 39 deals with specified contraventions committed by medical practitioners, embryologists and other persons associated with surrogacy clinics.
The punishment may extend to five years of imprisonment and a fine extending to ₹10 lakh, subject to the precise offence and applicable statutory provisions.
Punishment Under Section 40
Section 40 provides penalties for intending couples or intending women who seek commercial surrogacy.
For a first offence, punishment may extend to five years of imprisonment and a fine extending to ₹5 lakh.
Subsequent offences attract enhanced punishment under the Act.
Nature of Offences
Under Section 43, offences under the legislation are:
- Cognizable: Police may exercise the powers available for cognizable offences under the applicable criminal procedure law.
- Non-Bailable: Bail is not available as an automatic right and is governed by the applicable legal provisions.
- Non-Compoundable: The offences cannot ordinarily be settled through compounding by the parties.
These classifications reflect the seriousness with which the legislation treats prohibited surrogacy practices.
Important Supreme Court Judgment on the Surrogacy (Regulation) Act, 2021
Smt Vijaya Kumari S v Union of India (2025)
In Smt Vijaya Kumari S v Union of India, decided on 9 October 2025, the Supreme Court considered the applicability of statutory age restrictions to intending couples who had already commenced surrogacy-related procedures before the Act came into force.
The central question concerned whether the new statutory age requirements could affect couples who had already reached an advanced stage of the surrogacy process before 25 January 2022.
The Supreme Court held that the age restrictions would not operate retrospectively against qualifying intending couples who had already reached the stage of embryo creation and freezing before the legislation came into force.
The decision recognised the legal significance of steps completed before the commencement of the Act.
However, the Court did not decide the broader constitutional validity of the age restrictions.
The judgment is important because it clarifies the application of the legislation to certain surrogacy arrangements initiated before its commencement.
It does not create a general exemption from eligibility conditions for all intending couples.
Difference Between Altruistic and Commercial Surrogacy
The following table explains the principal differences between the two forms of surrogacy under Indian law.
| Basis | Altruistic Surrogacy | Commercial Surrogacy |
| Meaning | Surrogacy without commercial payment or reward beyond permitted expenses | Surrogacy involving prohibited commercial payments or financial benefits |
| Legal Status | Permitted subject to statutory conditions | Prohibited |
| Payment | Permitted medical expenses, insurance and other authorised expenses | Payment or reward beyond legally permitted expenses |
| Purpose | Enables surrogacy within a regulated, non-commercial framework | Involves commercial consideration for surrogacy |
| Eligibility | Statutory eligibility and medical requirements apply | Cannot be lawfully undertaken |
| Regulatory Framework | Governed by the Act and Rules | Attracts statutory prohibitions and penalties |
| Legal Consequences | Lawful when all applicable conditions are satisfied | May result in criminal and regulatory action |
Difference Between the Surrogacy Act and ART Act, 2021
The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 are related but distinct laws.
The Surrogacy Act primarily regulates arrangements in which a woman carries and delivers a child for an intending couple or intending woman.
The ART Act regulates assisted reproductive technology services, including procedures involving the handling of human gametes or embryos for achieving pregnancy.
| Basis | Surrogacy (Regulation) Act, 2021 | ART (Regulation) Act, 2021 |
| Main Purpose | Regulation of surrogacy arrangements | Regulation of assisted reproductive technology services |
| Main Focus | Intending parents, surrogate mothers and surrogacy clinics | ART clinics, ART banks, patients and reproductive procedures |
| Surrogate Mother | Central to the regulated arrangement | Not necessarily involved in ART treatment |
| Regulated Activities | Lawful surrogacy procedures and related arrangements | Assisted reproductive procedures and related services |
| Legal Safeguards | Surrogacy eligibility, consent, insurance and parentage | ART registration, consent, gamete donation and related safeguards |
Both laws may apply where assisted reproductive technology is used as part of a surrogacy procedure.
Challenges Associated with the Surrogacy (Regulation) Act, 2021
Although the legislation establishes several safeguards, certain provisions have raised important legal and policy questions.
Restrictive Eligibility Requirements
The Act permits surrogacy only for specified categories of intending parents.
Single men and unmarried women outside the statutory category of intending women are excluded from the ordinary eligibility framework.
These restrictions have generated discussions concerning reproductive autonomy, equality and access to assisted reproduction.
Restrictions on Surrogate Mothers
The Act requires surrogate mothers to satisfy conditions concerning age, marital history, existing children and the number of times they may participate.
While these conditions are intended to protect health and prevent exploitation, their effect on reproductive autonomy has also been debated.
Prohibition of Commercial Surrogacy
The prohibition of commercial surrogacy seeks to prevent exploitation and commercialisation.
However, an important policy question concerns whether a completely non-commercial framework adequately addresses the physical, emotional and economic burdens undertaken by surrogate mothers.
Implementation and Medical Accessibility
Effective implementation depends on functioning regulatory authorities, registered clinics, timely certification and accessible medical services.
Procedural delays and differences in administrative implementation may affect access to lawful surrogacy services.
These concerns highlight the importance of balancing medical safeguards, reproductive rights and personal liberty under Article 21 and effective regulation.
Conclusion
The Surrogacy (Regulation) Act, 2021 establishes the legal framework for surrogacy in India. It permits altruistic surrogacy under specified conditions while prohibiting commercial surrogacy and activities involving exploitation.
The legislation regulates eligibility, medical certification, informed consent, insurance, clinic registration and the legal status of children born through surrogacy. It also provides regulatory authorities and criminal penalties to enforce compliance.
The Surrogacy (Regulation) Amendment Rules, 2024 further clarify the permitted use of donor gametes in certain circumstances, while judicial decisions have addressed questions relating to the application of statutory restrictions.
The Act represents an important development in Indian medical law, particularly in relation to reproductive healthcare, bodily autonomy, child welfare and the regulation of assisted reproduction.
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