- 19-Apr-2025
- Healthcare and Medical Malpractice
India has long been a popular destination for international couples seeking surrogacy, often referred to as reproductive tourism. The country's relatively affordable medical costs, high-quality healthcare facilities, and favorable legal framework made it an attractive option. However, in recent years, India has introduced significant changes to its surrogacy laws, particularly concerning the eligibility of foreign nationals to access surrogacy services. These changes aim to regulate the practice more strictly, protecting both the rights of the surrogate mothers and the children born through surrogacy, while also limiting exploitation in the industry.
Under the 2015 Surrogacy (Regulation) Bill and the 2021 Surrogacy (Regulation) Act, India has introduced restrictions on foreign nationals opting for surrogacy in the country.
The 2021 legislation restricts surrogacy to Indian citizens and Overseas Citizens of India (OCI) who have been living in India for at least two years before opting for surrogacy. Foreigners or Non-Resident Indians (NRIs) are no longer allowed to access surrogacy in India, which is a significant shift from the earlier policy.
The Indian government has introduced a more stringent framework for surrogacy by promoting altruistic surrogacy, where the surrogate mother is not compensated beyond medical expenses and insurance. The law prohibits commercial surrogacy (where the surrogate is paid beyond basic compensation), and this applies to both Indian citizens and international couples who are eligible.
Under the new law, single parents (both men and women) can only pursue surrogacy if they meet specific criteria and must be Indian citizens or OCIs. International singles are excluded from pursuing surrogacy in India under the current legal framework.
For couples eligible to use surrogacy in India, including Indian citizens and OCI cardholders, a comprehensive surrogacy agreement must be signed between the intended parents and the surrogate. This contract should outline the rights and responsibilities of all parties involved, including the surrogate's compensation (in the case of altruistic surrogacy, this is limited), medical care, and other considerations related to the pregnancy. It is crucial to consult with legal experts to ensure compliance with Indian laws and protect the rights of both the surrogate and the intended parents.
For international couples, the citizenship of the child born through surrogacy is an important consideration. Under Indian law, children born through surrogacy to foreign parents may face challenges in obtaining foreign citizenship, as Indian law does not automatically grant citizenship to children born through surrogacy if neither parent is Indian. The intended parents must ensure they meet the legal requirements for obtaining citizenship for the child in their home country.
Surrogacy clinics and fertility centers in India must meet high medical and ethical standards under the Surrogacy (Regulation) Act of 2021. Clinics that offer surrogacy services are required to have government certification, ensuring that they adhere to ethical practices and that surrogates are not exploited.
After the birth of the child, intended parents must go through legal processes to ensure that they are recognized as the legal parents of the child. This may include adoption or applying for a parental order in some cases, depending on the legal situation and country of origin of the parents.
India had been a hub for reproductive tourism, attracting international couples due to the affordability and availability of surrogacy services. However, with the tightening of surrogacy laws, the market for foreign surrogacy has reduced significantly. Foreign nationals may need to consider other countries like the US, Ukraine, or Georgia for surrogacy, where laws are more permissive for international intended parents.
The Indian government’s focus on altruistic surrogacy aims to curb the exploitation of surrogates, which had become a concern in the past when commercial surrogacy was prevalent. It also aims to protect surrogates from being forced into arrangements due to financial need.
International couples considering surrogacy should ensure they have access to comprehensive legal and emotional support, both in India and in their home country. Understanding the complex legal procedures and maintaining strong communication with surrogacy agencies and legal professionals is critical.
A Canadian couple previously used to opt for surrogacy arrangements in India due to the low cost of the process. However, under the new surrogacy laws, they find that they are no longer eligible for surrogacy in India as foreign nationals. As a result, they must now look to other countries like the US or Ukraine, where international surrogacy laws are more flexible and allow foreign couples to legally pursue surrogacy without the restrictions imposed in India.
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