Is Surrogacy Legal in India, and What Are the Conditions?

In India, surrogacy is a legal procedure, but it is strictly regulated to ensure the welfare of the child, the surrogate mother, and the intended parents. The laws governing surrogacy in India have undergone significant changes over the past decade, and the legal landscape aims to regulate the practice in a way that is ethical, transparent, and prioritizes the best interest of the child. The main legal framework for surrogacy in India is governed by the Assisted Reproductive Technology (ART) Regulation Bill, 2020, as well as the Surrogacy (Regulation) Bill, 2020.

Is Surrogacy Legal in India?

Surrogacy is legal in India, but there are strict conditions and guidelines that must be followed. Surrogacy in India has evolved to allow for both altruistic (non-commercial) surrogacy and commercial surrogacy (with restrictions). While commercial surrogacy was previously allowed, it is now heavily regulated under the new laws. The government aims to ensure that surrogacy practices are ethical and that the rights and welfare of all parties involved—particularly the surrogate mother and the child—are protected.

Legal Framework for Surrogacy in India

1. Surrogacy (Regulation) Bill, 2020

The Surrogacy (Regulation) Bill, 2020 is the primary piece of legislation that governs surrogacy in India. It aims to regulate the surrogacy process, prevent exploitation of women, and ensure that the process is ethical.

Key Provisions:

• Altruistic Surrogacy Only: The Bill permits only altruistic surrogacy (where the surrogate mother is not paid for carrying the child beyond medical expenses and insurance). Commercial surrogacy (involving payment to the surrogate beyond medical costs) is prohibited.
• Eligibility for Surrogate Mothers: Surrogates must be Indian women aged between 25 to 35 years and must have already given birth to at least one child. Surrogates can only carry a child for a relative or a couple with whom they have a pre-existing relationship.
• Married Women as Surrogates: Single women and widows are not permitted to be surrogate mothers, as the law insists that surrogacy must occur within a married relationship.
• Surrogate Agreement: A formal agreement must be signed between the surrogate mother and the intended parents, which outlines the rights, obligations, and compensation (only medical expenses) during the surrogacy process.
• No Commercialization: The law forbids any commercial surrogacy arrangements, including the involvement of agencies that exploit surrogate mothers for monetary gain. It also bans foreign couples from seeking surrogacy in India. Only Indian citizens or NRIs (Non-Resident Indians) can avail of surrogacy services.

2. Assisted Reproductive Technology (ART) Regulation Bill, 2020

The Assisted Reproductive Technology (ART) Regulation Bill, 2020 establishes regulations for ART clinics, which perform surrogacy, in vitro fertilization (IVF), and other reproductive technologies.

Key Provisions:

• Accreditation of ART Clinics: All ART clinics, including those involved in surrogacy, must be accredited by the government to ensure proper medical practices and prevent exploitation.
• Legal Rights of the Child: The child born via surrogacy is legally the child of the intended parents. The intended parents must obtain the birth certificate and legal custody of the child.
• Donor and Surrogate Rights: The law also ensures that both egg donors and surrogate mothers have their rights protected. The intended parents are the legal parents, but surrogates must have informed consent, and their health and well-being are paramount.

Conditions for Surrogacy in India

Eligibility of Intended Parents

• Indian citizens or NRIs are eligible for surrogacy.
• The intended parents must be a married couple (either heterosexual or same-sex) and can only opt for surrogacy if they are unable to conceive naturally due to medical reasons.
• Single men are not permitted to use surrogacy as per the law.

Requirements for Surrogate Mothers

• Indian women aged 25 to 35 years who have already had a child of their own.
• The surrogate must be a close relative (in cases of altruistic surrogacy), such as a sister, cousin, or a woman with a deep personal relationship with the intended parents.
• Surrogates can only carry a child for the intended parents and not for a commercial arrangement or as part of a contract with surrogacy agencies.

Surrogacy Agreement

• A formal surrogacy agreement is required, which is vetted by a court. The agreement specifies the roles and responsibilities of both the surrogate and the intended parents, including financial aspects like medical expenses and insurance.
• The intended parents must also make arrangements for the surrogate’s medical care and insurance during the pregnancy.

No Commercial Surrogacy

• Commercial surrogacy (where surrogates receive monetary compensation beyond medical expenses and insurance) is banned. Surrogacy must be purely altruistic.
• Agencies facilitating commercial surrogacy are prohibited, and any commercial exploitation of surrogates is criminalized.

Citizenship of the Child

• The child born through surrogacy in India is considered the legal child of the intended parents, and they must ensure the legal registration of the child’s birth.
• The citizenship of the child is typically that of the intended parents' country, and all immigration and legal processes must be followed for the child to obtain citizenship in the intended parents' country.

Post-Surrogacy Care

The law mandates that the surrogate mother must receive post-birth care and counseling to ensure her emotional and physical well-being.

Example

John and Mary, an NRI couple, decided to pursue surrogacy in India after years of infertility. They meet all eligibility criteria, including being married for over five years and undergoing medical assessments. They approach an ART clinic approved by the government and sign a surrogacy agreement with a close relative (Mary's sister), who agrees to be their surrogate. All medical and legal expenses are covered, and the surrogate mother is compensated only for medical costs. After the child is born, the intended parents obtain the birth certificate, and the surrogate's rights are respected.

Summary

Surrogacy in India is legal but is strictly regulated under the Surrogacy (Regulation) Bill, 2020 and the Assisted Reproductive Technology (ART) Regulation Bill, 2020. Key regulations include the prohibition of commercial surrogacy, a requirement that surrogates be Indian women aged 25-35 and having already had a child, and the necessity of a formal surrogacy agreement. Only Indian citizens and NRIs are allowed to pursue surrogacy, and the arrangement must be altruistic. The child born through surrogacy is legally the child of the intended parents, and the surrogate mother is entitled to compensation only for medical expenses and care.