- 19-Apr-2025
- Healthcare and Medical Malpractice
In India, surrogacy is legal but comes with stringent eligibility requirements to ensure that the process is ethical and protects the welfare of both the surrogate mother and the intended parents. The legal framework surrounding surrogacy is governed primarily by the Surrogacy (Regulation) Bill, 2020, which specifies the conditions under which surrogacy can be legally pursued, the eligibility criteria for intended parents and surrogates, and the practice of altruistic surrogacy.
Intended parents (the couple or individual wishing to have a child through surrogacy) must meet specific criteria to qualify for surrogacy under Indian law. The key eligibility requirements include:
Intended parents must be a legally married couple. This can be either a heterosexual or a same-sex couple (the latter only in some states with specific regulations on surrogacy). Single individuals cannot use surrogacy services under the current law, particularly single men.
The primary criterion for eligibility is that the intended parents must be unable to conceive or carry a pregnancy due to medical reasons, such as infertility, medical conditions, or age-related issues. The law specifies that surrogacy is intended for those who are medically incapable of having a child naturally and not simply for convenience.
The law restricts surrogacy services to Indian citizens and Non-Resident Indians (NRIs). Foreign nationals are not permitted to use surrogacy services in India under the Surrogacy (Regulation) Bill, 2020.
The intended parents must be of appropriate age:
This ensures that the intended parents are physically and emotionally capable of raising a child.
The intended parents must be in good physical and mental health. A medical and psychological assessment is part of the eligibility screening to ensure they are capable of raising a child.
Surrogates are women who agree to carry and deliver a child for the intended parents. The eligibility criteria for surrogate mothers are also strictly defined under Indian law:
A surrogate mother must be an Indian woman aged between 25 to 35 years. This age range ensures that the woman is mature enough to understand the process, but not so old as to have higher health risks associated with pregnancy.
The surrogate must have already given birth to at least one child of her own. This ensures that the surrogate is physically and mentally prepared for the process, as it requires emotional and physical resilience.
The surrogate must be married. Unmarried women are not allowed to be surrogates under Indian law.
The surrogate must be a close relative of the intended parents, such as a sister, cousin, or someone with a deep personal connection. This provision is part of the regulation of altruistic surrogacy. The surrogate mother can only carry the child for the intended parents (and not for commercial purposes or other third parties).
Commercial surrogacy is banned in India. Surrogates may receive compensation only for medical expenses, insurance, and lost wages during the pregnancy, but cannot receive additional compensation or profit. This aims to prevent the exploitation of women.
A surrogate must be medically and psychologically fit to carry the pregnancy. She must also have a medical examination to assess her health and ensure she is not at risk of complications.
As per the current regulations, only altruistic surrogacy is legal. This means that the surrogate mother is not paid beyond her medical expenses, insurance, and any other expenses directly related to the pregnancy. Surrogacy must occur within a personal relationship (close relative) with the intended parents.
Commercial surrogacy (where the surrogate mother is paid beyond her medical expenses) is prohibited under the Surrogacy (Regulation) Bill, 2020. This provision was introduced to prevent the exploitation of women and to ensure the ethical practice of surrogacy.
While Indian citizens and NRIs can use surrogacy services in India, foreign nationals are not allowed to enter into surrogacy arrangements in India. This includes individuals from other countries who may seek surrogacy arrangements in India for reasons like lower costs or fewer restrictions in their own country.
The following conditions apply to anyone wishing to use surrogacy services in India:
Both the intended parents and the surrogate mother must provide informed consent. The surrogate mother must understand the risks involved in carrying the pregnancy, and the intended parents must acknowledge their legal and financial responsibilities.
A legal surrogacy agreement must be signed between the surrogate mother and the intended parents. This agreement covers issues like compensation (medical expenses), legal rights, and post-pregnancy responsibilities. The agreement must be approved by a court.
All parties involved (the surrogate mother and intended parents) must undergo medical and psychological screening. This includes health assessments to ensure that both the surrogate mother and the intended parents are physically fit to proceed.
Same-sex couples can use surrogacy services in India in certain situations, but the law's implementation may vary in certain jurisdictions. For the most part, the law prefers surrogacy to be practiced by married couples.
Mr. and Mrs. Sharma, an Indian couple in their early 40s, have been struggling with infertility for several years. They meet the eligibility criteria to use surrogacy services, as they are married, Indian citizens, and both have medical conditions that prevent them from conceiving naturally. They approach an ART clinic and select Mrs. Sharma's sister as the surrogate. The clinic ensures that all medical screenings are done, and a legal surrogacy agreement is signed between the parties. As this is altruistic surrogacy, the surrogate mother will only be reimbursed for her medical expenses and insurance, with no commercial payment involved.
In India, surrogacy services are legally available to Indian citizens and NRIs who meet specific eligibility criteria. Intended parents must be married, medically incapable of conceiving, and in good health. Surrogate mothers must be Indian women aged 25-35 years, have already given birth to a child, and must be close relatives of the intended parents. Surrogacy must be altruistic, with compensation restricted to medical expenses only. The practice of commercial surrogacy is banned in India.
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