The enactment of the Surrogacy (Regulation) Act, 2021 represents one of India’s most significant legislative interventions in the sphere of reproductive rights and bioethics. Enacted amid growing concerns regarding the commercialization of surrogacy, the exploitation of economically vulnerable women, and the emergence of India as a hub for “fertility tourism,” the Act seeks to create a comprehensive and stringent regulatory framework governing surrogacy practices across the country.

Situated within India’s broader evolution of reproductive‑rights jurisprudence following landmark privacy rulings such as Justice K.S. Puttaswamy v. Union of India (2017), the Act reflects the State’s attempt to reconcile assisted‑reproduction ethics with constitutional guarantees of dignity, autonomy, and equality.

The legislation attempts to balance ethical considerations, women’s dignity, child welfare, and reproductive autonomy while prohibiting commercial surrogacy and permitting only altruistic surrogacy under tightly controlled conditions.

What is Surrogacy?

Surrogacy is a legal and biological arrangement in which a woman (the surrogate) agrees to carry and deliver a child for another person or couple (the intended parents), who will become the legal parents of the child after birth.

Surrogacy is primarily classified into two types: Gestational, where the surrogate has no genetic link to the child (using IVF), and Traditional, where the surrogate’s own egg is used. Arrangements are further divided into Altruistic (no payment beyond medical costs) and Commercial (compensation provided for the service).

The Surrogacy (Regulation) Act, 2021 strictly prohibits commercial surrogacy in India, permitting only altruistic arrangements to prevent exploitation. Eligible intended parents must be a married Indian couple—a man aged 26–55 and a woman aged 23–50—with a proven medical necessity, though recent updates allow single widows or divorcees to apply under specific conditions.

The surrogate must be an “ever-married” adult woman with a child of her own, typically a relative, who may only serve as a surrogate once. Furthermore, while at least one intended parent must contribute genetic material, judicial clarifications now permit donor gametes if one parent has a documented medical inability to provide their own.

Background and Legislative Intent

India had become a global centre for commercial surrogacy during the early 2000s due to comparatively lower medical costs, advanced fertility infrastructure, and the availability of economically disadvantaged women willing to act as surrogate mothers. This unregulated expansion led to serious ethical and legal concerns, including commodification of surrogate mothers, trafficking in embryos and gametes, abandonment of surrogate children, and lack of legal safeguards.

Recognizing these issues, the Law Commission of India in its 228th Report recommended the prohibition of commercial surrogacy and the establishment of a legal regulatory regime. The Statement of Objects and Reasons attached to the Act explicitly acknowledges these concerns and identifies unethical solicitation and commercialisation as the primary motivations behind the legislation.

Definitional Framework and Key Concepts

The Act defines surrogacy as a practice in which a woman bears and gives birth to a child for an intending couple with the intention of handing over the child after birth. Importantly, the law distinguishes between “altruistic surrogacy” and “commercial surrogacy.”

Altruistic surrogacy permits only reimbursement of medical expenses and insurance coverage for the surrogate mother, while any additional payment, reward, or financial incentive constitutes commercial surrogacy and is prohibited.

The legislation also introduces a highly restrictive eligibility framework. It permits surrogacy only for married Indian couples suffering from proven medical infertility and certain categories of intending women, specifically widows or divorcees between the ages of 35 and 45 years. The surrogate mother must be an ever-married woman with a biological child of her own and aged between 25 and 35 years. Furthermore, a woman can act as a surrogate only once in her lifetime.

Regulation Through Institutional Mechanisms

The Act establishes a multilayered institutional structure for supervision and implementation. It provides for the creation of the National Assisted Reproductive Technology and Surrogacy Board and corresponding State Boards to oversee policy, standards, and enforcement. Appropriate Authorities are empowered to grant or cancel registrations of surrogacy clinics, investigate complaints, conduct inspections, and initiate prosecutions.

The legislation further mandates compulsory registration of all surrogacy clinics and imposes strict standards regarding infrastructure, personnel, and medical practices. Clinics operating without registration are prohibited from conducting any surrogacy-related procedures. These provisions demonstrate the legislature’s intent to bring transparency and accountability into a previously fragmented and poorly regulated sector.

Protection of Surrogate Mothers and Children

One of the most notable features of the Act is its emphasis on the protection of surrogate mothers and children born through surrogacy. The law requires written informed consent from the surrogate mother and allows her to withdraw consent before embryo implantation. It also prohibits forced abortion without the surrogate mother’s written consent and authorization from the competent authority.

Additionally, the child born through surrogacy is legally recognized as the biological child of the intending couple or intending woman and is entitled to all rights available to a natural child under Indian law. The Act also expressly prohibits abandonment of the child for any reason, including disability, sex, or medical condition.

These safeguards reflect an attempt to address historical abuses associated with commercial surrogacy arrangements, where surrogate mothers often lacked bargaining power and children sometimes faced legal uncertainty regarding parentage and nationality.

Penal Framework and Strict Enforcement

The Act adopts a stringent penal approach to ensure compliance. Commercial surrogacy, commodification of surrogate mothers, sale of embryos or gametes, and sex selection are punishable with imprisonment extending up to ten years and fines up to ten lakh rupees. Other violations, including procedural non-compliance by clinics and medical professionals, attract substantial criminal penalties. Significantly, all offences under the Act are declared cognizable, non-bailable, and non-compoundable.

The severity of these penalties underscores the legislature’s determination to eliminate commercial surrogacy and deter exploitative practices. However, critics argue that excessive criminalization may drive surrogacy practices underground, thereby increasing the vulnerability of women rather than protecting them.

Despite these protective safeguards, the Act has remained the subject of intense constitutional and ethical debate.

Constitutional and Ethical Concerns

Despite its welfare-oriented objectives, the Act has generated substantial constitutional and ethical debate. One of the principal criticisms is that the legislation adopts an overly paternalistic approach by severely restricting reproductive autonomy and excluding several categories of individuals from access to surrogacy.

The law permits surrogacy only for heterosexual married couples and certain widowed or divorced women, thereby excluding unmarried individuals, live-in partners, LGBTQ+ persons, and foreign nationals. Critics contend that these exclusions may violate constitutional guarantees of equality and personal liberty under Articles 14 and 21 of the Constitution.

Following the Supreme Court’s progressive jurisprudence recognizing reproductive choice and privacy as integral aspects of dignity and liberty, such restrictive eligibility conditions have attracted serious scrutiny.

Another major drawback concerns the requirement that surrogacy must be purely altruistic. While the legislature intended to prevent exploitation, many scholars argue that denying compensation entirely may itself be exploitative because it disregards the physical, emotional, and medical burdens borne by surrogate mothers.

In practice, altruistic surrogacy may place undue pressure on female relatives to become surrogate mothers without adequate financial recognition.

Judicial Trends and Emerging Challenges

Indian courts have increasingly recognized reproductive rights as part of personal liberty and decisional autonomy. The Supreme Court’s decisions in cases concerning privacy, dignity, and reproductive choice suggest a broader constitutional understanding of bodily autonomy. Against this evolving jurisprudential background, several provisions of the Surrogacy (Regulation) Act may face constitutional challenges.

Practical implementation also presents significant challenges. Obtaining multiple certificates, medical approvals, judicial orders, and insurance compliance can create procedural delays and bureaucratic hurdles, as the process requires a Certificate of Essentiality and a Certificate of Eligibility. The requirement that intending couples demonstrate infertility may also intrude upon personal privacy and medical confidentiality.

Additionally, the prohibition on commercial surrogacy may encourage cross-border arrangements or informal underground networks, defeating the very purpose of regulation. Effective implementation therefore requires not merely criminal prohibitions but also accessible oversight mechanisms, ethical medical governance, and social support systems.

In the landmark case of Arun Muthuvel v. Union of India (2023), the Supreme Court of India intervened to protect the reproductive rights of women suffering from congenital conditions like Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome, who are biologically unable to produce eggs. The Court stayed the operation of the March 2023 amendment to Rule 7 of the Surrogacy (Regulation) Rules, 2022, which had mandated that both gametes must belong to the intending couple.

By interpreting the law contextually, the Bench held that when a woman has a certified medical condition preventing egg production, the requirement of being ” Intended child must ordinarily be genetically related to the intending couple” is satisfied if the child is related to the husband. This judicial recognition ensures that the Act’s objective of enabling parenthood is not defeated by rigid biological requirements that would otherwise render surrogacy an “impossible” option for medically incapacitated women.

Comparison Table

Global Variations in Surrogacy Legislation

Surrogacy laws in developed nations represent a diverse legal spectrum, categorized into commercial, altruistic, and prohibitive models. The United States (in states like California) and Ukraine serve as primary hubs for regulated commercial surrogacy, where surrogates may receive financial compensation.

Conversely, the United Kingdom, Canada, and Australia permit only altruistic surrogacy, strictly limiting payments to the reimbursement of actual medical and pregnancy-related expenses while often requiring post-birth judicial orders to transfer legal parentage.

In sharp contrast, many European nations, including France, Germany, and Italy, maintain total bans on the practice, with Italy recently expanding its jurisdiction to prosecute citizens who seek surrogacy services even in foreign countries where the procedure is legal.

Summary Table: Global Surrogacy Status (2026)

The global landscape for surrogacy, as detailed in the table above, reveals a fragmented legal environment where a country’s regulatory stance is deeply tied to its ethical and social values. While “friendly” jurisdictions like the United States offer the most expansive access—permitting commercial arrangements and recognizing parental rights even before birth—most other nations favour a more restrictive altruistic model.

This is evident in countries like India, the UK, and Canada, which aim to prevent exploitation by prohibiting payment, though they differ significantly in who they allow to participate.

Conversely, the prohibitive stance in France and Germany highlights a fundamental legal rejection of surrogacy, viewing it as a violation of human dignity. This divergence creates significant hurdles for intended parents, often leading to “procreative tourism” where individuals must navigate a complex web of conflicting laws regarding compensation, eligibility, and the eventual legal recognition of their children.

Conclusion

The Surrogacy (Regulation) Act, 2021 represents India’s attempt to reconcile technological advancements in reproductive medicine with ethical governance and social justice concerns. By prohibiting commercial surrogacy and establishing a comprehensive regulatory framework, the law seeks to protect women from commodification and safeguard the welfare of children born through surrogacy. At the same time, the legislation raises complex constitutional and ethical questions regarding reproductive autonomy, equality, privacy, and the role of the State in regulating intimate personal decisions.

While the Act succeeds in addressing many abuses associated with unregulated commercial surrogacy, its highly restrictive framework may inadvertently limit legitimate reproductive choices and exclude marginalized groups from accessing parenthood through assisted reproduction. The long-term success of the legislation will therefore depend upon a balanced interpretation that protects dignity without undermining autonomy, and regulation without excessive paternalism.

Ultimately, the future legitimacy of India’s surrogacy regime will depend upon its ability to harmonize ethical regulation with constitutional values of autonomy, dignity, equality, and reproductive freedom.