Surrogacy and its laws in India

Abstract:

Surrogacy is the term derived from the word “surrogatus”which means substitute acted on the behalf of another. Surrogacy is that situation when intended couples are not able to reproduce their child due to some medical and social obstacles to parenthood. It is a set up or an arrangement in which a woman gets pregnant and gives birth on behalf of another intended couple who then become the legal parents of that child. This arrangement takes place to the consent of the third-party to carry a pregnancy for intended parents who can’t conceive due to the medical issues. The last several decades have noticed a dramatic increase throughout the world ubiquity of infertility. Thus, modern medicine has advanced at breakneck speed bringing in its realm significant growth in fertility methods. This articles highlights about the term surrogacy, why this method used that is what is the reason for this method, types of surrogacy ,history of surrogacy, when it become legal, offence and penalties, surrogacy laws in India, issues, surrogacy regulation act 2021, provisions in Indian constitution in context to surrogacy . Keywords – Surrogacy, parenthood, ubiquity of infertility 

Introduction 

Nature has given the most amazing ability to bring new life into the world and every woman has this. Right to have a children is the fundamental human right .Desire for children among couples is universal phenomenon.But what about those who can’t able go through from this desire.Now the technology get advanced and many set up exist for those couples who are not able to conceive child .Like surrogacy is the method that consists the surrogate mother and intended couple. It is the common fact that surrogacy is surging , global business a form of cross- technology integration of the biological and physical incompetence of the woman to procreate, surrogacy is nowadays sparking an interest in many couples because it is the only way to procreate.The surrogate mother loans her womb for the intended couples to fulfill their dreams for child .There are many types of surrogacy- Traditional surrogacy and Gestational surrogacy. Traditional surrogacy determines surrogate’s mother eggs are fertilized with the intended father’s sperm thus she is a genetic mother whom she gives birth but in some of the states this type of surrogacy is actually against the law while Gestational surrogacy determines the doctor to fertilize eggs from intended mother using sperm from intended father. There are two subtypes of surrogacy which is Altruistic surrogacy that determines, surrogacy women surrogate without being compensated and this is only legal form of surrogacy which is legal in certain countries , Independent surrogacy determines women offer surrogacy services without enlisting the help of surrogacy services provider, Commercial surrogacy determines compensated for the surrogacy methods .So these are the different forms that has been discussed in above lines. 

Historical Background 

Brimming with history and culture, there are less topics that one would not find track down in ancient texts of Indian civilization. From philosophy to medicine to even the most mundane acts of life can be found in these texts – including the topic of surrogacy found in the Mahabharata and manusmriti and many other mythological texts. It is also known as Niyog Dharma as per the epic Mahabharata. An instance is given in the Mahabharata – that of Queen Satyavati asking her eldest son Vyasa to perform niyoga with the widows of his younger brother Vichitravirya thereby giving birth to Dhritarashtra, Pandu and Vidura. It is a practice whereby a woman whose husband is unable of siring or has died before siring a child would request and appoint a revered man for helping her bear children. 

Similarly, the concept was followed in the case of Pandu and his wives Madri and Kunti. Another example would be the legend of the 7th child of Vasudev and Devki, Balram had been transferred to the womb of Rohini while still an embryo. Kartikey the god of war and fertility has been said to have been born of Lord Shiva and Ganga (as the surrogate mother), not goddess parvati. Myth and reality have proved the existence of the concept or term surrogacy . 

At the root of Indian democracy has its tracks and provided the evidence of being an old century arrangement . The method became a successful practice in India with the birth of world’s second India’s first IVF baby Kanupriya alias Durga who was born in Kolkata on October 3,1978. Since then the field of assisted reproductive technology or called ART in short has shown fastest developments. 

Surrogacy Issues in India

As there are different issues regarding surrogacy whether it is legal issues,socio physiological issues, health issues or religious issues.We discuss it in this article which are as follows: 

1.Legal issues 

Indian perspective surrogacy in India is strictly regulated under the Surrogacy Regulation Act 2021 and it permits only altruistic surrogacy for Indian citizens whereas banning commercial surrogacy.This leads to provide an overview of legal challenges, eligibility criteria, documentation requirements and ethical concerns for intended couples. The parliament of India accepted legislation to better govern fertility and its practices of surrogacy in the country and protect the health of women involved. 

• Indian married couples with infertility can go with surrogacy arrangements only . ● Foreigners, same sex couples and single parents are not eligible.
• There is a need for a medical certificate for proving it is mandatory. ● Surrogacy is strictly altruistic—commercial arrangements are illegal. ● From government authorities there is a need for strict approvals which is required.

The system of India only acknowledges the birth mother .In India, the legal system only recognizes the birth mother as the legal mother, and there is no established legal framework for using DNA testing to determine paternity. Accordingly, the name on the child’s birth certificate must be that of the birth mother and her husband. However, in 2008, the Supreme Court of India, in the notable Manji’s case involving a Japanese baby, permitted commercial surrogacy, reinforcing international trust in India as a destination for surrogacy. 

To bring regulation to India’s largely market-driven fertility industry, the government introduced a comprehensive 35-page Surrogacy Bill. This bill includes various provisions designed to govern assisted reproductive technologies (ART) and surrogacy practices. Key provisions include the restriction of surrogacy to those who cannot otherwise carry a pregnancy to term, and the legal enforceability of surrogacy contracts. It mandates that married women must obtain their husband’s consent to become surrogates, and that no surrogate shall undergo more than three embryo transfers for the same couple. Additionally, egg donor identities are to be kept confidential, and both fertility clinics and gamete banks must undergo a strict accreditation process. 

The bill proposes the establishment of a national ART registry under the Department of Health Research to oversee and manage data related to fertility services. It restricts ART access to only those couples in legally recognized sexual relationships in India, effectively excluding same-sex couples. For foreign nationals seeking surrogacy in India, it is required that they provide written proof from their home country confirming that surrogacy is permitted there and that children born granted entry rights into their country which born through India surrogacy .This may disqualify individuals from several countries like Canada and certain European nations where surrogacy is either prohibited or not clearly permitted. 

To ensure compliance and oversight, the bill also proposes the formation of national and state-level advisory boards, comprising members from the Health Department, scientific community, industry, and civil society, who will be responsible for implementing and monitoring the bill’s provisions. The ICMR’s ART Bill of 2010 adds further guidelines, such as restricting surrogate mothers to women aged 21 to 35 years, and limiting them to a maximum of five live births, including their own children. Additionally, in cases where the commissioning parents live abroad, the bill mandates the appointment of a local guardian who would be legally responsible for accepting custody of the baby if the intended parents fail to do so. This bill was introduced by a private member of parliament, reflecting a significant step toward formalizing reproductive rights and responsibilities in India. 

2. Health issues 

Women considering surrogacy must understand that the process involves significant medical and emotional risks. Procedures such as IVF, fertility treatments, and pregnancy itself come with potential complications. Surrogate mothers commonly experience side effects like fatigue, changes in appetite and sensory perception, nausea and vomiting (especially during the first trimester), heartburn, constipation, weight gain, dizziness, bloating, fluid retention, swelling, and hemorrhoids. 

Though surrogacy is not a new concept in India, commercial surrogacy—often referred to as “wombs for rent”—has grown into a profitable industry. The combination of English-speaking services, affordable medical care, and skilled professionals attracts many international clients. However, the ethics and social implications of this practice remain controversial. On one hand, surrogacy is seen as a means of economic upliftment for rural women; on the other, it raises concerns of exploitation, where women may be compelled into surrogacy not out of choice, but under pressure from family members, particularly husbands or mothers-in-law, for financial reasons.

Critics liken surrogacy to prostitution, arguing that it commodifies a woman’s body and should be prohibited on moral and ethical grounds. They argue that surrogacy contracts strip women of autonomy, rendering their personal experience of pregnancy irrelevant or invalid. In many cases, surrogate mothers try to emotionally detach from the child they carry, viewing the pregnancy purely as a financial transaction. This commercialisation of the female body is often seen as dehumanizing, reducing reproductive capacity to a market service and raising serious concerns about the dignity and rights of the women involved . 

3. Religious issues 

Surrogacy presents a complex and often controversial moral and ethical challenge across various cultures around the world. Religious beliefs, which play a central role in shaping views on human life and procreation, have differing perspectives on the practice. While some faiths completely forbid surrogacy, others are more accepting or conditional in their approval. The increasing trend of Western individuals turning to Indian surrogate mothers has further intensified the debate, introducing political and cultural dimensions to what is already a sensitive religious and legal issue. Since procreation falls within the domain of spiritual and religious doctrine, it is natural that religious traditions assert strong positions on the matter. 

The Christian religion bible also mentioned that children are the God gifted and not the right. The question of having children is deeply rooted in both faith and fate, with many believing that God determines whether a couple is blessed with children or not. For those who face infertility, there are various pathways to building a family. While adoption is one such option, many individuals and couples desire to experience the entire journey of parenthood—from conception and pregnancy to childbirth and child-rearing. A strong desire for a biological connection with the child often influences their decision. 

In the Islamic tradition, surrogacy is a highly debated and sensitive topic. Generally, all forms of surrogacy are considered Haram (forbidden) in Islam, as they may involve the mixing of lineage and violate traditional rules of marriage and family. However, the approach to surrogacy varies between Islamic sects. While Sunni scholars largely reject all forms of surrogacy—particularly those involving the use of a man’s sperm in a woman to whom he is not married—Shiite scholars in countries like Iran have taken a more permissive stance. In Iran, gestational surrogacy is being practiced in several reputable medical centers, with fatwas (jurisprudential rulings) allowing such arrangements strictly for legally married couples. They interpret the procedure as a transfer of an embryo rather than an act of conception, which is not forbidden in Shiite doctrine. 

Nonetheless, ethical concerns persist, particularly regarding the commercial nature of surrogacy in Iran. While financial compensation to surrogate mothers is accepted both legally and religiously, critics argue that such transactions raise ethical dilemmas. It has been proposed that any payment should be limited to reimbursements for medical and pregnancy-related expenses, requiring new legislation and religious rulings to ensure ethical integrity. 

In contrast, Jewish law permits surrogacy under strict conditions. Only gestational surrogacy is allowed, and the gametes must come from the intended parents. Additionally, in vitro fertilization (IVF) is mandated as the method of conception. 

Despite the moral, religious, and legal complexities surrounding surrogacy, its practice is steadily growing. Data from the Society for Assisted Reproductive Technology (SART) reported around 260 surrogate births in 2006 alone, with numbers continuing to rise year after year, reflecting the growing acceptance and demand for surrogacy as a solution to infertility. 

4. Ethical issues:- Surrogacy in India presents a range of ethical challenges that raise concerns about exploitation, consent, and regulation. A major issue is the vulnerability of economically disadvantaged women, who may be coerced into becoming surrogates due to financial pressure from family members or sheer economic necessity. This brings into question whether their participation is truly voluntary or driven by desperation. Often, these women lack full understanding of the medical procedures involved and are not given proper legal or emotional support, resulting in decisions made without truly informed consent. Emotionally, surrogate mothers may struggle to detach from the child after birth, leading to psychological stress that is frequently overlooked. 

Another controversial aspect is the commercialisation of pregnancy, where a woman’s body is treated as a commodity, especially when international couples travel to India for cheaper services. This practice of “reproductive tourism” creates complex legal and ethical dilemmas, especially in cases where commissioning parents abandon the child or fail to ensure proper citizenship and parental rights. Additionally, there is concern over the rights of the child born through surrogacy, particularly their identity, legal status, and future welfare. Many fertility clinics in India operate with minimal oversight, leading to inconsistent medical standards and unregulated practices that further complicate the ethical landscape. Moreover, while some believe compensation to surrogates is fair, others argue it borders on exploitation and should be restricted to covering basic medical and living costs during pregnancy. In many instances, patriarchal norms further worsen the situation, where women are pressured by husbands or in-laws to become surrogates as a source of income. Repeated surrogacy pregnancies also put the health of these women at risk, especially in the absence of laws limiting how often one can serve as a surrogate. These ethical concerns highlight the urgent need for stricter laws, better awareness, and more compassionate support systems for surrogate mothers in India. 

5. Socio -medical issues :- Studies have explored various specific aspects, including the nature of emotional bonding and the process of revealing the surrogacy story to the child; the backgrounds, motivations, and personal experiences of surrogate mothers; and the evolving characteristics and roles of intended or commissioning parents.Women who give up babies through surrogacy often remain outside the bounds of what society typically considers acceptable. In contrast, general public opinion—reflected in population surveys—tends to be less supportive of third-party reproduction. This is largely because those individuals are not personally involved and therefore do not feel compelled to re-evaluate their beliefs, allowing them to maintain their original, socially and psychologically consistent views. 

Psychological complexities in surrogacy often arise within the surrogate motherhood triad, which includes three key parties: The surrogate mother or couple, who must part with the baby at or shortly after birth; The intended or commissioning parents, who take custody of the child; and The child (offspring) born out of the arrangement.Each member of this triad experiences unique emotional and psychological challenges throughout and after the surrogacy process. Surrogate mothers often anticipated that the intended parents would be transparent with their child about their origins, especially since many surrogates had already explained to their own children that the baby they carried belonged to another family, not their own. Because of this openness, most surrogates hoped to maintain some level of contact with the intended family after the baby was handed over, allowing them to preserve newly formed friendships and enabling their own children to remain connected with the surrogate child. 

Throughout pregnancy, it is natural for the woman carrying the baby to develop a strong emotional connection and attachment, as the process of gestation fosters a deep bond. Previous research on children raised in lesbian households—including those born from previous heterosexual relationships before the mother identified as lesbian—compared them with children of single heterosexual mothers. These studies found no significant differences in the children’s emotional well-being, friendship quality, self-esteem, or expressions of masculinity and feminine. 

Surrogacy Regulation Act of 2021 

The Surrogacy (Regulation) Act, 2021 lays down a structured legal approach to regulate surrogacy practices in India. It outlines who qualifies to be commissioning parents and surrogate mothers and imposes strict rules to prevent commercialisation. The Surrogacy (Regulation) Act, 2021 provides a detailed legal structure to oversee surrogacy practices in India, ensuring ethical implementation and preventing commercial exploitation. It outlines strict qualifications for both commissioning parents and surrogate mothers. Couples wishing to opt for surrogacy must be between the ages of 25 and 50, remain childless, and present valid medical evidence—including genetic health reports. They are also required to offer a three-year insurance plan for the surrogate mother and obtain approval from a designated medical board. This approval must then be validated through a judicial order by a first-class magistrate. 

For a woman to act as a surrogate, she must be married, between 25 and 35 years of age, have at least one biological child of her own, and pass a mental health evaluation. The Act further mandates Aadhaar linkage for all parties involved and requires that at least one of the intended parents has a genetic connection to the embryo. The use of donated embryos is prohibited, though widowed or divorced women aged 35–45 are permitted to donate their eggs. 

In international cases, if Indian couples undergo surrogacy abroad, the resulting child will not automatically gain Indian citizenship. If the intended parents pass away before the child is born, those listed in the surrogacy agreement will take custody and can later opt for adoption or place the child in an orphanage. Importantly, when the child turns 18, they have the right to access details about their birth and learn the identity of the surrogate mother. 

Eligibility for Intended Parents:

1. Age Requirement: Individuals seeking surrogacy must fall within the age bracket of 25 to 50 years. 
2. No Existing Child: The couple must be childless—biologically, through adoption, or previous surrogacy. 
3. Health Documentation: Couples must present clean medical records, including reports on genetic health. 
4. Insurance Provision: It is mandatory to arrange 36 months of insurance for the surrogate mother starting from embryo implantation. 
5. Medical Board Approval: A government-recognized medical board must assess and certify the necessity of surrogacy for the couple. 
6. Legal Sanction: A first-class judicial magistrate must approve the surrogacy through a formal legal order confirming the parentage. 

Requirements for Surrogate Mothers: 

1. Permissible Age: A surrogate must be between 25 and 35 years of age. 2. Parental and Marital Status: She should be married and must have at least one biological child. 

2. First-Time Participation: A woman is permitted to act as a surrogate only once in her lifetime. 

3. Mental Health Assessment: A psychiatric evaluation is necessary to confirm that the surrogate is emotionally and mentally prepared. 

Other Regulatory Provisions:- 

• Aadhaar Linking: The surrogate, commissioning parents, and the child must have linked Aadhaar cards for identity and record purposes. 
• Genetic Tie Requirement: The embryo must be biologically related to at least one of the intended parents. 
• Embryo Donation Restriction: Donated embryos are not allowed under this law. 
• Egg Donation by Specific Women: Widowed or divorced women aged between 35 and 45 may legally donate their eggs.

International Surrogacy Clause: Indian nationality will not be granted to children born abroad via surrogacy to Indian parents. 

• Custodial Responsibilities on Death: In the event that the intending parents pass away before childbirth, the nominated guardians will care for the child. They may later place the child for adoption or with an orphanage if needed. 
• Child’s Right to Know: Upon turning 18, a child born through surrogacy has the legal right to access information about their origin and the identity of the surrogate. 

Modifications in surrogacy rules of India 

On February 21, the Union government revised the Surrogacy (Regulation) Rules, 2022, bringing significant relief to aspiring parents facing fertility challenges. The updated rules now permit married couples to utilize donor eggs or sperm in surrogacy procedures, offering new hope to those with medical conditions that prevent natural conception. This marks a reversal of the stricter March 2023 amendment, which had disallowed the use of donor gametes. The latest revision effectively nullifies that earlier restriction, paving the way for broader access to assisted reproductive options.The Union Government introduced a fresh amendment to the Surrogacy (Regulation) Rules, 2022, on February 21, allowing married couples to proceed with surrogacy using donor sperm or eggs if needed. This revision brings much-needed relief to couples dealing with medical infertility issues. It marks a significant shift from the earlier March 2023 regulation, which had imposed a complete ban on the use of donor gametes. The recent update reverses that restriction, offering new possibilities for couples striving to experience parenthood.However, the notification mandates that the child born through surrogacy must be biologically linked to at least one of the intending parents through their gametes. Consequently, if both members of a married couple are unable to contribute their own gametes due to medical reasons, they become ineligible to pursue surrogacy under the current rules. 

Landmark judgements by the Supreme Court of India on surrogacy laws :

1. Baby Manji Yamada v. Union of India (2008)

• Background: A Japanese couple had engaged an Indian surrogate. However, they divorced before the child’s birth, and the intended mother declined custody. 
• Core Issue: Determining the citizenship and legal standing of a child born via commercial surrogacy in India. 
• Verdict: 

○ The Supreme Court permitted the child’s grandmother to take her back to Japan. 

○ It acknowledged commercial surrogacy as legally valid under Indian law at that time. 

Impact: This case brought international attention to India’s surrogacy industry and spurred efforts to create formal legal regulations around it.

2. Jan Balaz v. Union of India (2009) 

(Initially decided by the Gujarat High Court, later moved to the Supreme Court) 

• Background: A German couple had twins through surrogacy in India, but German authorities refused to recognize the children’s citizenship due to lack of surrogacy laws. 
• Core Issue: Citizenship status and passport issuance for surrogate children born in India to foreign nationals. 
• Verdict:- The Gujarat High Court ruled the twins as Indian citizens by birth. ○ The matter was diplomatically settled, without a direct ruling from the Supreme Court. 
• Impact: This case highlighted the legal and diplomatic complexities in international surrogacy arrangements and led to tighter visa and travel rules for foreign commissioning parents. 

3. Baby Yamini v. Union of India (2013)

(Kerala High Court case with broader implications) 

• Background: A child born via surrogacy was abandoned by the commissioning parents after birth. 
• Core Issue: Accountability in the event of commissioning parents withdrawing after surrogacy. 
• Verdict:- The court stressed the necessity of comprehensive, binding contracts before proceeding with surrogacy. 
• It also held that parental responsibility must be predetermined and enforced.
• Impact: This judgment reinforced the legal responsibility of intending parents and the need for solid legal safeguards in surrogacy arrangements. 

4. Supreme Court Review of 2023 Surrogacy Regulations 

• Context: Following a 2023 rule that banned donor gametes in surrogacy, a woman diagnosed with MRKH Syndrome (a congenital condition that causes infertility) approached the Supreme Court. 
• Verdict:The court questioned the legality and fairness of the restrictive rule. ● It expressed that denying surrogacy to couples with genuine medical issues violated the core intent of surrogacy laws. 
• Impact: These observations contributed to policy reforms allowing conditional use of donor gametes, improving inclusivity in the surrogacy process. 

5. Devika Biswas v. Union of India (2016) 

• Context: -Although this case was not directly about surrogacy, it addressed broader reproductive rights under Indian constitutional law. 
• Verdict:- The Supreme Court ruled that reproductive freedom and bodily autonomy are protected under Article 21 (Right to Life and Personal Liberty). 
• Impact: -This ruling strengthened the legal foundation for the right to access Assisted Reproductive Technologies (ART) and surrogacy in India.

Conclusion 

According to various religious and ethical sources, several points regarding surrogacy in India become evident. It is recommended that specific legislation be enacted to govern surrogacy arrangements, clearly outlining the roles and responsibilities of both the surrogate mother and the intending parents. 

There is a strong need for a comprehensive legal framework that ensures the protection of the child’s rights and welfare. Furthermore, laws should clearly define the legal processes involved in transferring and terminating parental rights. 

It is also essential that the surrogate mother receives a copy of the agreement, as she is a key stakeholder in the arrangement. Her interests and well-being must be considered throughout the process. In addition, maintaining the confidentiality and anonymity of surrogate mothers should be a priority to protect their identity and privacy. Surveys and interviews reveal that most surrogate mothers come from economically disadvantaged backgrounds, with monthly incomes ranging between Rs. 2,500 and 6,000. Nearly all of them have previously given birth and typically have two children of their own, indicating that they are biologically capable of natural reproduction. However, they are often drawn into surrogacy arrangements as subjects of assisted reproductive technologies (ART), largely due to financial need. Surrogacy is not merely a medical arrangement—it is an emotional lifeline for countless couples yearning for the joy of parenthood. In India, the introduction of the Surrogacy (Regulation) Act, 2021 has been a crucial step in offering legal clarity, ethical boundaries, and protection for all parties involved—especially surrogate mothers and the child born through this selfless journey. Logically, the law addresses key concerns such as exploitation, commercialization, and child welfare. It sets strict eligibility criteria, ensures transparency, and seeks to create a balance between compassion and control. Yet, emotionally, it leaves many aspiring parents heartbroken due to restrictive clauses—particularly those with genuine medical conditions or unconventional family structures.As India evolves socially and medically, our surrogacy laws must also grow—not just with legal precision, but with human empathy. The path forward demands an inclusive framework that honors the dignity of surrogate mothers, respects the dreams of intended parents, and protects the future of every child born through this noble practice.Let us ensure that surrogacy in India is not just legally sound, but morally just, emotionally sensitive, and deeply humane.

References 

1. Ministry of Health & Family Welfare, Surrogacy (Regulation) Act, 2021: Rules and Guidelines, Govt. of India (Feb. 2022),  https://www.mohfw.gov.in/surrogacy-guidelines.pdf. 
2. Narayan G. et al., The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?, 2023, (Cureus Journal) PMC10199460 (India).3.India Law Offices, ‘Surrogacy Laws in India’ (India Law Offices, 2023) https://www.indialawoffices.com/legal-articles/surrogacy-laws-in-india a 
3. Jagran Josh, ‘Modifications in Surrogacy Rules in India’ (Jagran Josh, 26 February 2024) https://www.jagranjosh.com/general-knowledge/modifications-in-surrogacy-rules-in-ind ia-1708884633-1
4. R Kannan, ‘Why Were the Surrogacy Rules Modified? Explained’ (The Hindu, 5 May 2024)  https://www.thehindu.com/news/national/why-were-the-surrogacy-rules-modified-explai ned/article67885927.ece 
5. Surrogacy Law in India’ (The Analysis, 26 April 2024) https://theanalysis.org.in/explained-surrogacy-law-in-india/ 
6. ‘On surrogacy, Indian law goes a step further — but not far enough’ (Indian Express, 29 February 2024) https://indianexpress.com/article/opinion/columns/on-surrogacy-indian-law-goes-a-step further-but-not-far-enough-9187014/