Who is Eligibile for Surrogacy in India
Surrogacy in India is legal under the Surrogacy (Regulation) Act, 2021, but only when specific legal and medical conditions are satisfied. The law permits altruistic surrogacy and regulates the eligibility of intending couples, intending women and surrogate mothers.
The following are the key eligibility requirements for surrogacy in India:
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- Married couples are eligible for surrogacy if the wife is between 23 and 50 years of age and the husband is between 26 and 55 years of age. The couple must also satisfy the prescribed medical and legal conditions.
- Single women can opt for surrogacy only in specified circumstances. An Indian woman who is a widow or divorcee and is between 35 and 45 years of age may qualify under the law.
- Single men and never-married single women are not eligible to commission surrogacy under the general provisions of the Surrogacy (Regulation) Act, 2021.
- A surrogate mother must be between 25 and 35 years of age, must have been married at some point and must have a child of her own. She must also be medically and psychologically fit.
- Surrogacy must generally be medically necessary. The intending couple or intending woman must obtain the prescribed medical certification establishing the need for gestational surrogacy.
- Commercial surrogacy is prohibited in India. Only altruistic surrogacy is permitted, although the surrogate mother’s prescribed medical expenses, insurance and other permitted expenses may be covered.
- The 2024 amendment permits donor eggs or sperm in certain cases. An intending couple may use a donor gamete where the District Medical Board certifies the required medical condition, provided at least one gamete comes from the couple.
The eligibility criteria are primarily governed by the Surrogacy (Regulation) Act, 2021, the Surrogacy (Regulation) Rules, 2022 and subsequent amendments.
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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 that the child will be handed over after birth.
The Surrogacy (Regulation) Act, 2021 regulates such arrangements to protect the rights of surrogate mothers, intending parents and children born through surrogacy.
The Act recognises gestational surrogacy, in which the surrogate mother carries an embryo but does not contribute her own eggs. Consequently, the surrogate mother is not genetically related to the child.
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Types of Surrogacy Recognised Under Indian Law
Indian law distinguishes between altruistic and commercial surrogacy.
Altruistic Surrogacy
Altruistic surrogacy is an arrangement in which the surrogate mother does not receive monetary compensation or any other financial benefit beyond the expenses permitted under the law.
These permitted expenses include medical expenses and prescribed insurance coverage.
Commercial Surrogacy
Commercial surrogacy involves providing payment, reward or financial benefits in exchange for surrogacy services beyond the expenses permitted by law.
Commercial surrogacy is prohibited under the Surrogacy (Regulation) Act, 2021. The restrictions form an important part of the legal framework governing surrogacy in India.
Therefore, satisfying the eligibility criteria does not permit an intending couple to enter into a commercial arrangement with a surrogate mother.
Who Is Eligible for Surrogacy in India?
Surrogacy is available to legally recognised categories of intending parents who satisfy the conditions prescribed under the Act.
The principal categories are:
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- Legally married intending couples who satisfy the prescribed age, medical and other requirements.
- Indian widowed women between 35 and 45 years of age who satisfy the applicable conditions.
- Indian divorced women between 35 and 45 years of age who satisfy the applicable conditions.
Eligibility is not determined solely by a person’s desire to become a parent. The law imposes restrictions concerning marital status, age, medical necessity, existing children and statutory approvals.
What Are the Eligibility Criteria for Married Couples?
Section 4 of the Surrogacy (Regulation) Act, 2021 prescribes the principal requirements governing surrogacy arrangements.
An intending couple must satisfy several conditions before proceeding with gestational surrogacy.
Marriage Requirement
The intending couple must be legally married.
The Act defines a couple in terms of a legally married Indian man and woman who satisfy the prescribed eligibility conditions.
Therefore, a live-in relationship does not independently qualify as an intending couple under the general statutory framework.
Age Limit for the Wife
The intending wife must be between 23 and 50 years of age on the date of certification.
The age requirement is a statutory condition for obtaining eligibility certification.
A woman outside this age range does not ordinarily satisfy the age requirement, even if she has a medical condition preventing pregnancy.
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However, the Supreme Court has recognised limited protection for certain couples who commenced the surrogacy process before the legislation came into force.
Age Limit for the Husband
The intending husband must be between 26 and 55 years of age on the date of certification.
Both spouses must satisfy their respective age requirements.
For example, a couple in which the wife is 35 years old and the husband is 40 years old satisfies the statutory age conditions. However, medical certification and other requirements must still be fulfilled.
Medical Necessity for Surrogacy
The intending couple must have a recognised medical indication necessitating gestational surrogacy.
The District Medical Board is responsible for certifying the relevant medical condition.
Surrogacy is therefore not generally available merely because a married couple prefers another woman to carry a pregnancy.
The medical indication must satisfy the requirements prescribed under the Surrogacy (Regulation) Rules, 2022.
Restriction Concerning Existing Children
The intending couple must generally not have a surviving child who is biological, adopted or born through an earlier surrogacy arrangement.
However, the Act provides an exception where an existing child has a qualifying disability, life-threatening disorder or incurable fatal illness.
The exception is subject to the prescribed medical certification and approval.
Therefore, the existence of a child does not automatically exclude every couple from surrogacy, but the statutory exception must be established.
Can a Single Woman Opt for Surrogacy in India?
A single woman can opt for surrogacy in India only if she falls within the category of an intending woman recognised under the Act.
Section 2(1)(s) 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.
Eligibility of Widowed Women
A widowed Indian woman may qualify for surrogacy if she is between 35 and 45 years of age.
She must also satisfy the applicable medical conditions and obtain the necessary certificates.
Widowhood alone does not establish eligibility. The age restriction and other statutory requirements continue to apply.
Eligibility of Divorced Women
A divorced Indian woman between 35 and 45 years of age may also qualify for surrogacy.
The woman must have the necessary medical indication and satisfy the prescribed legal conditions.
For example, a 38-year-old divorced Indian woman who cannot safely carry a pregnancy because of a recognised medical condition may be eligible, subject to the required certifications and approvals.
Can an Unmarried Woman Opt for Surrogacy?
An unmarried woman who has never been married is not included within the statutory definition of an intending woman.
The definition specifically covers widowed and divorced Indian women.
Consequently, an unmarried woman who has never married is not ordinarily eligible to commission surrogacy under the existing statutory framework.
Can a Single Man Opt for Surrogacy in India?
A single man is not eligible to commission surrogacy under the general provisions of the Surrogacy (Regulation) Act, 2021.
The Act recognises eligible married couples and intending women falling within the prescribed categories.
It does not provide a corresponding category for single men.
Therefore, a single man cannot ordinarily obtain statutory eligibility certification for surrogacy merely on the basis of his desire to become a father.
This restriction is separate from the legal provisions governing adoption in India and other methods of family formation.
What Is the Age Limit for Surrogacy in India?
The statutory age limits differ according to the category of the person involved in the surrogacy arrangement.
| Category | Minimum Age | Maximum Age |
| Intending wife | 23 years | 50 years |
| Intending husband | 26 years | 55 years |
| Widowed intending woman | 35 years | 45 years |
| Divorced intending woman | 35 years | 45 years |
| Surrogate mother | 25 years | 35 years |
The age of the intending couple is relevant on the date of certification, while the age requirement for the surrogate mother applies on the day of embryo implantation.
These limits are legal conditions and operate independently of the medical assessment of reproductive capacity.
What Medical Conditions Qualify for Surrogacy in India?
Rule 14 of the Surrogacy (Regulation) Rules, 2022 identifies medical indications that may justify gestational surrogacy.
The medical condition must be examined and certified by the competent District Medical Board.
Absence or Abnormality of the Uterus
Surrogacy may be medically indicated where a woman does not have a uterus or has a uterine abnormality that prevents her from carrying a pregnancy.
This may include congenital absence of the uterus or surgical removal of the uterus because of a medical condition.
Certain structural abnormalities affecting pregnancy may also be relevant.
Repeated Failure of IVF Treatment
A history of repeated implantation failure following assisted reproductive procedures may support the medical indication for surrogacy.
The relevant treatments may include in-vitro fertilisation (IVF) and intracytoplasmic sperm injection (ICSI).
However, an unsuccessful IVF attempt does not automatically establish eligibility.
The medical history and applicable criteria must be assessed by the competent medical authorities.
Repeated Pregnancy Losses
Repeated pregnancy losses arising from qualifying medical circumstances may also justify consideration of gestational surrogacy.
The medical assessment must establish the relevant history and determine whether it falls within the prescribed indications.
The existence of pregnancy losses alone does not eliminate the need for statutory certification.
Serious Medical Conditions
Surrogacy may be indicated where a woman’s medical condition makes it impossible to carry a pregnancy to viability or where pregnancy would endanger her life.
Certain serious illnesses may make pregnancy medically unsafe.
In such cases, the medical risk must be established through the prescribed certification process.
The purpose of the medical eligibility requirement is to ensure that surrogacy is undertaken in circumstances recognised by law.
Who Can Become a Surrogate Mother in India?
The eligibility requirements for surrogate mothers are separate from those applicable to intending parents.
Section 4(iii)(b) of the Surrogacy (Regulation) Act, 2021 establishes the principal conditions.
Age Requirement
A surrogate mother must be between 25 and 35 years of age on the day of embryo implantation.
This requirement applies regardless of whether the woman is medically capable of carrying a pregnancy outside the prescribed age range.
Marital History
The surrogate mother must be an ever-married woman.
An ever-married woman is one who has been married at some point.
The requirement does not necessarily mean that she must be currently married.
Requirement of Having a Child
The surrogate mother must have a child of her own.
This condition distinguishes surrogacy eligibility from general reproductive capacity.
A woman who has never had a child does not satisfy this statutory requirement merely because she is medically fit.
Medical and Psychological Fitness
The surrogate mother must obtain a certificate of medical and psychological fitness from a registered medical practitioner.
This requirement is intended to ensure that she is medically capable of undergoing the procedure and understands its implications.
Restriction on Repeated Surrogacy
A woman cannot act as a surrogate mother more than once during her lifetime.
This restriction prevents repeated participation in surrogacy arrangements and forms part of the protective framework established by the Act.
No Genetic Contribution
A surrogate mother cannot provide her own eggs for the surrogacy procedure.
Indian law requires gestational surrogacy, meaning that the embryo transferred to the surrogate mother must not be created using her own eggs.
Therefore, traditional surrogacy involving the surrogate mother’s genetic contribution is not permitted under the statutory framework.
Does the Surrogate Mother Have to Be a Relative?
No. The Surrogacy (Regulation) Act, 2021 does not impose a general requirement that the surrogate mother must be a close relative of the intending couple.
An unrelated woman may act as a surrogate mother if she satisfies the statutory conditions.
However, the arrangement must remain altruistic, and the surrogate mother must provide the necessary consent.
The absence of a close-family relationship does not authorise commercial payments.
Similarly, being a relative does not exempt a woman from the prescribed age, marital history, medical fitness and other requirements.
Can Donor Eggs or Sperm Be Used for Surrogacy in India?
The use of donor gametes is governed by the Surrogacy (Regulation) Rules, 2022, as amended in 2024.
The Surrogacy (Regulation) Amendment Rules, 2024 introduced an important exception concerning donor eggs and sperm.
Use of Donor Gametes by Married Couples
Where the District Medical Board certifies that either spouse has a medical condition necessitating the use of a donor gamete, the intending couple may use a donor egg or donor sperm.
However, at least one gamete must come from the intending couple.
For example, where the wife cannot provide viable eggs because of a qualifying medical condition, donor eggs may be permitted while the husband’s sperm is used.
Similarly, donor sperm may be permitted where the husband has a qualifying medical condition and the wife’s eggs are used.
This exception does not generally permit both gametes to come from donors.
Use of Donor Gametes by Single Women
Under the general provisions introduced through the 2024 amendment, an intending woman who is a widow or divorcee must use her own eggs and donor sperm.
Accordingly, the rules governing single intending women differ from those applicable to married intending couples.
Any case-specific judicial relief must be distinguished from the general statutory requirements.
What Certificates Are Required for Surrogacy in India?
Eligibility alone does not authorise the commencement of a surrogacy procedure.
The Act requires statutory certification and compliance with prescribed procedures.
Certificate of Essentiality
Section 4(iii)(a) provides for a certificate of essentiality.
The requirements include:
- Medical certification: The District Medical Board must issue the prescribed certificate concerning the medical indication necessitating gestational surrogacy.
- Parentage and custody order: The prescribed order concerning the parentage and custody of the child must be obtained from a court of a Magistrate of the First Class or above.
- Insurance coverage: The surrogate mother must receive insurance coverage for 36 months, covering prescribed pregnancy-related and postpartum complications.
These requirements are intended to establish the medical necessity of surrogacy and protect the legal interests of the surrogate mother and child.
Certificate of Eligibility
A separate certificate of eligibility is required for the intending couple and the surrogate mother.
The appropriate authority verifies whether the statutory conditions have been satisfied.
For intending couples, this includes the relevant age, marital status and existing-child requirements.
For surrogate mothers, it includes age, marital history, the requirement of having a child, and medical and psychological fitness.
Consent and Other Requirements
The surrogate mother’s informed consent is another essential requirement.
The surrogacy procedure must also comply with the prescribed medical standards and be undertaken through a registered surrogacy clinic.
The arrangement cannot proceed solely on the basis of a private agreement between the intending parents and the surrogate mother.
Is Surrogacy Allowed for Couples Who Already Have a Child?
Surrogacy is generally unavailable to an intending couple that already has a surviving biological, adopted or previously surrogate-born child.
However, Section 4 provides an exception concerning certain serious medical conditions affecting an existing child.
The exception may apply where the child has a qualifying physical or mental disability, life-threatening disorder or incurable fatal illness.
The relevant medical condition must be supported by the prescribed certification and approval.
For example, the existence of a healthy biological child would ordinarily prevent the intending couple from satisfying the existing-child requirement.
However, where an existing child has a qualifying serious condition, the statutory exception may be considered.
The exception is not automatic. Appropriate medical assessment and statutory compliance remain necessary.
Can Foreigners Opt for Surrogacy in India?
The general statutory eligibility framework is restricted to the categories of Indian intending parents recognised under the Surrogacy (Regulation) Act, 2021.
Foreign nationals cannot ordinarily commission surrogacy in India merely by arranging treatment at an Indian fertility clinic.
The Act does not establish an unrestricted surrogacy facility for foreign individuals or couples.
Questions involving overseas citizenship, Indian-origin persons or changes in nationality require careful examination of the applicable statutory definitions and administrative requirements.
The general prohibition on commercial surrogacy also applies irrespective of the nationality of the parties.
Can a Couple Above the Age Limit Opt for Surrogacy?
The prescribed age limits generally apply to intending couples seeking surrogacy after the commencement of the Surrogacy (Regulation) Act, 2021.
However, the Supreme Court considered an important exception concerning couples who had already commenced reproductive treatment before the legislation came into force.
Vijaya Kumari S. v. Union of India (2025)
In Vijaya Kumari S. v. Union of India, decided on 9 October 2025, the Supreme Court examined the retrospective application of statutory age restrictions.
The case concerned intending couples who had created and frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022.
The issue was whether the subsequently introduced age restrictions could prevent such couples from proceeding with the transfer of their previously frozen embryos to a surrogate mother.
The Supreme Court held that the age restrictions could not be applied retrospectively to the specified category of couples who had already commenced the surrogacy process before the commencement of the Act.
The Court recognised the significance of the reproductive steps undertaken before the new restrictions became applicable.
However, the judgment did not generally invalidate the statutory age limits.
Its protection is relevant to the particular circumstances identified by the Court, including the creation and freezing of embryos before 25 January 2022.
Other statutory requirements must continue to be satisfied.
Legal Significance of the Judgment
The judgment establishes an important distinction between prospective application of eligibility restrictions and their application to reproductive arrangements commenced before the legislation.
The decision is also relevant to the wider legal discussion concerning reproductive rights and the protection of reproductive choices under Indian law.
For couples beginning the surrogacy process after the Act came into force, the statutory age requirements ordinarily continue to apply.
Therefore, the judgment should not be interpreted as a general permission for all couples above the prescribed age to obtain surrogacy services.
What Is the Procedure for Obtaining Surrogacy Approval in India?
The legal process involves medical assessment, eligibility verification and compliance with the requirements governing surrogacy clinics.
The general procedure includes the following stages.
Step 1: Assessment of Medical Eligibility
The intending couple or intending woman undergoes medical examination to determine whether there is a recognised indication for gestational surrogacy.
Relevant medical records and treatment histories are considered.
Step 2: Certification by the District Medical Board
The medical indication must be certified by the competent District Medical Board in accordance with the applicable law.
Where donor gametes are proposed, the additional requirements under the amended Rules must also be considered.
Step 3: Verification of Eligibility
The appropriate authority examines the eligibility conditions applicable to the intending parents and proposed surrogate mother.
This includes the relevant age requirements, marital status and other statutory restrictions.
Step 4: Completion of Legal Documentation
The parties must complete the prescribed documentation, including the necessary certificates, parentage and custody order, informed consent and insurance arrangements.
Step 5: Surrogacy Procedure at a Registered Clinic
The medical procedure must take place at a surrogacy clinic registered under the applicable regulatory framework.
The clinic must comply with the prescribed medical, documentation and procedural requirements.
Every stage must remain consistent with the prohibition on commercial surrogacy.
What Happens If Surrogacy Eligibility Rules Are Violated?
The Surrogacy (Regulation) Act, 2021 establishes restrictions and penalties concerning unlawful surrogacy practices.
Violations may include commercial surrogacy, exploitation of surrogate mothers, prohibited financial arrangements and other activities expressly prohibited under the Act.
The legislation provides for criminal penalties in specified circumstances.
The applicable consequences depend on the nature of the contravention and the statutory provision involved.
However, failure to satisfy an eligibility requirement should not automatically be equated with every criminal offence under the Act. Criminal liability must be determined by reference to the relevant offence provision.
The regulatory framework also provides for action against clinics that violate applicable registration and operational requirements.
Difference Between Eligibility of Intending Parents and Surrogate Mothers
Although both intending parents and surrogate mothers must satisfy legal requirements, their eligibility conditions serve different purposes.
| Basis | Intending Parents | Surrogate Mother |
| Role | Commission surrogacy to become legal parents | Carries and gives birth to the child |
| Age requirement | Depends on category of intending parent | 25–35 years |
| Marital status | Married couple or eligible widowed/divorced woman | Must be ever married |
| Medical condition | Recognised medical indication necessitating surrogacy | Must be medically and psychologically fit |
| Existing children | Generally prohibited, subject to statutory exceptions | Must have a child of her own |
| Genetic contribution | Governed by the applicable gamete rules | Cannot provide her own eggs |
| Repeated surrogacy | Governed by applicable eligibility restrictions | Cannot act as a surrogate mother more than once |
| Certification | Essentiality and eligibility requirements | Eligibility and fitness certification |
Conclusion
The eligibility for surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021, the Surrogacy (Regulation) Rules, 2022 and subsequent amendments.
The law permits altruistic surrogacy for eligible married couples and specified categories of widowed and divorced Indian women. It imposes age restrictions, medical eligibility conditions, requirements concerning existing children and mandatory certification procedures.
Surrogate mothers must also satisfy separate conditions relating to age, marital history, previous childbirth, medical fitness and voluntary participation.
The 2024 amendment concerning donor gametes and the Supreme Court’s 2025 ruling on the retrospective application of age restrictions have clarified important aspects of the legal framework.
Overall, surrogacy eligibility in India depends on compliance with several interconnected statutory requirements rather than medical need or personal circumstances alone.
Frequently Asked Questions on Surrogacy Eligibility in India
Is Surrogacy Legal in India in 2026?
Yes. Altruistic surrogacy is legal in India under the Surrogacy (Regulation) Act, 2021, subject to the prescribed eligibility, medical and procedural requirements. Commercial surrogacy is prohibited.
Can a Married Couple Choose Surrogacy Without Medical Reasons?
No. Surrogacy ordinarily requires a recognised medical indication necessitating gestational surrogacy. Personal preference alone does not satisfy the medical eligibility requirements under the Act and Rules.
Can a Woman Above 50 Years Opt for Surrogacy?
An intending wife above 50 years does not ordinarily satisfy the statutory age requirement. Limited protection may be available in cases covered by the Supreme Court’s 2025 decision concerning embryos created and frozen before 25 January 2022.
Can a Divorced Woman Opt for Surrogacy?
Yes. An Indian divorced woman between 35 and 45 years of age may qualify as an intending woman if she satisfies the applicable medical and legal requirements.
Can a Woman Who Has Never Been Married Become a Surrogate Mother?
No. The law requires a surrogate mother to be an ever-married woman who has a child of her own. A woman who has never married does not satisfy this requirement.
Can a Surrogate Mother Receive Payment?
A surrogate mother cannot receive commercial compensation for carrying a child. However, the law permits prescribed medical expenses, insurance coverage and other expenses allowed within the altruistic surrogacy framework.
Is There an Age Relaxation for Surrogacy in India?
The Act does not establish a general age-relaxation mechanism. However, the Supreme Court has recognised protection for certain couples who had already created and frozen embryos before the Act came into force, subject to the circumstances and conditions identified in its judgment.
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