What are the legal requirements for surrogacy in India?

Legal Requirements and Eligibility for Surrogacy in India

For many couples and individuals dreaming of parenthood, surrogacy is a beacon of hope when natural conception isn't an option. However, navigating the legal landscape of surrogacy in India can feel like walking through a maze. With the introduction of the Surrogacy (Regulation) Act, 2021, and subsequent amendments in 2024 and 2025, the rules have changed dramatically. Gone are the days of "rent-a-womb" tourism; today, India prioritizes ethical, altruistic practices designed to protect both the mother and the child.

If you are considering this path in 2026, you likely have a dozen questions keeping you up at night. Who is actually allowed to commission a surrogacy now? Can you use a donor egg if you have medical complications? What about OCI cardholders? The good news is that the law is clearer than ever, even if it is stricter. This guide breaks down every legal requirement, from eligibility criteria to mandatory certifications, stripping away the legal jargon to give you the plain facts.

Whether you are an Indian citizen living in Delhi or an NRI residing in New York, understanding these regulations is your first step toward expanding your family. We will explore the shift from "close relative" to "willing woman," the new allowances for donor gametes, and the rigid ban on commercial surrogacy that defines the current era of Indian reproductive law. Let's get started on your journey to understanding your rights and obligations.

What is the primary law governing surrogacy in India today?

The legal backbone of surrogacy in India is the Surrogacy (Regulation) Act, 2021. Before this Act, the industry was largely unregulated, leading to concerns about the exploitation of poor women. The new law completely overhauled the system by banning "commercial surrogacy"—where a surrogate is paid a fee or salary—and legalizing only "altruistic surrogacy."

Under this altruistic model, the surrogate mother cannot receive any financial compensation for her "service." The intending parents are only legally allowed to pay for her medical expenses, hospitalization costs, and a mandatory insurance policy. Any payment beyond these specific costs is a criminal offense, punishable by up to 10 years in imprisonment. This fundamental shift aims to ensure that women become surrogates out of compassion and willingness to help, rather than financial desperation.

Who is eligible to be an 'Intending Couple' for surrogacy?

The law is very specific about who can apply. To qualify as an "Intending Couple," you must be legally married. Live-in partners, regardless of how long they have been together, are not recognized under this Act. The marriage must have subsisted for at least five years, a rule designed to ensure the stability of the household the child will be born into.

Age limits are also strictly enforced. The wife must be between 23 and 50 years old, and the husband must be between 26 and 55 years old on the day of certification. Furthermore, the couple must not have any surviving child (biological, adopted, or from a previous surrogacy). There is a compassionate exception to this "no surviving child" rule: if your existing child suffers from a life-threatening disorder or an incurable mental or physical disability, you may still be eligible, provided you get approval from the appropriate authority.

Can single women or men opt for surrogacy in India?

The Act is quite restrictive regarding single parenthood. Single men are completely barred from commissioning a surrogacy in India. There are no exceptions to this rule currently. For single women, the law provides a narrow window of eligibility. You must be either a widow or a divorcee; unmarried single women are not eligible.

If you meet the marital status criteria, you must also be between the ages of 35 and 45. Crucially, the law mandates that a single woman must use her own eggs for the procedure. She cannot use donor eggs, meaning she must be medically capable of producing healthy oocytes to create the embryo with donor sperm. This ensures a biological link between the mother and the child.

Are OCI (Overseas Citizen of India) cardholders eligible?

This has been a point of confusion and legal battles, but recent notifications have clarified the stance. Overseas Citizens of India (OCI) are treated on par with Indian citizens for the purpose of surrogacy. This is a massive relief for the Indian diaspora who wish to return to their roots to build their families.

However, simply holding an OCI card is not a free pass. You must still fulfill all other criteria: a valid marriage of 5+ years, age limits, and medical proof of infertility. You will need to obtain the same "Certificate of Essentiality" and "Certificate of Eligibility" from the District Medical Board as a resident couple. Note that strictly foreign nationals (without OCI status) are still completely banned from commissioning surrogacy in India.

What constitutes a "Medical Indication" for surrogacy?

Surrogacy is viewed as a last resort under Indian law, not a lifestyle choice. You cannot opt for surrogacy simply because you do not wish to carry a pregnancy. You must obtain a certificate from a District Medical Board stating that you have a biological or medical reason that necessitates gestational surrogacy.

Common accepted indications include the absence of a uterus (hysterectomy), a congenital condition like Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome, or multiple failed IVF cycles where the embryo quality was good but implantation failed. Additionally, if a pregnancy would pose a serious risk to the mother's life (e.g., severe heart disease), this also qualifies as a valid medical indication.

What are the new rules regarding Donor Eggs and Sperm (Gametes)?

Originally, the 2021 Act required that the child be genetically related to both parents, effectively banning donor eggs or sperm. This caused immense distress for couples where one partner had no viable gametes. Recognizing this gap, the government issued a crucial notification in February 2024 amending the rules.

Now, if the District Medical Board certifies that either the husband or the wife suffers from a medical condition that necessitates the use of a donor gamete, it is permitted. However, the child must still be genetically related to at least one of the intending parents. For example, if the wife cannot produce eggs, the couple can use a donor egg fertilized by the husband's sperm. You cannot use both donor egg and donor sperm; the creation of a child with no biological link to the couple is still prohibited.

Who can be a Surrogate Mother under the new law?

The criteria for the surrogate mother are designed to protect her health and ensure she has completed her own family. She must be between 25 and 35 years old and married. Crucially, she must already have at least one biological child of her own, ensuring she understands the physical and emotional implications of pregnancy and childbirth.

Originally, the law required the surrogate to be a "close relative." However, recent interpretations and select committee recommendations have shifted this language to a "willing woman." This broader definition helps couples who may not have a sister or cousin willing to carry a pregnancy. The surrogate must provide informed consent and be medically and psychologically certified as fit for the process. She can never provide her own eggs for the surrogacy (traditional surrogacy is banned); she acts only as a gestational carrier.

What certificates are required from the Government?

The paperwork for surrogacy is rigorous. You cannot simply walk into a clinic and start treatment. First, you need the Certificate of Essentiality. This requires a recommendation from a District Medical Board confirming your medical need for surrogacy. It also requires an order from a Magistrate's court regarding the parentage and custody of the child to be born, ensuring the child's legal rights are secured before conception.

Second is the Certificate of Eligibility. This is issued by the Appropriate Authority (usually a state-level health official) after verifying your age, marriage duration, citizenship, and insurance coverage for the surrogate. Without these two certificates, no clinic in India can legally perform the embryo transfer.

Is there mandatory insurance for the surrogate?

To protect the surrogate's long-term health, the law mandates a comprehensive insurance policy. The coverage must be for a duration of 36 months. This extended period is intended to cover not just the 9 months of pregnancy, but also the postpartum recovery phase and any potential long-term complications arising from the delivery.

This insurance must be purchased from a company recognized by the Insurance Regulatory and Development Authority (IRDAI). The policy amount must be sufficient to cover all expenses for medical complications, and proof of this policy is a prerequisite for obtaining your legal permissions to proceed.

What is the cost breakdown for legal surrogacy in India?

While you cannot pay the surrogate a "fee," surrogacy is not free. The costs are directed toward the medical and legal processes. A significant portion goes to the IVF clinic for the retrieval, fertilization, and embryo transfer cycles. You are also responsible for the surrogate's nutritional support, maternity clothing, and travel expenses for checkups, which are legally reimbursable.

Legal fees are also a factor, as you will need a lawyer to draft the affidavits and navigate the court orders for parentage. The mandatory 36-month insurance policy premium is another fixed cost. When comparing costs to countries like the USA (where it can exceed $100,000), India remains a financially viable option, but ethical compliance is non-negotiable.

What are the rights of the child born through surrogacy?

One of the strongest protections in the 2021 Act is for the child. The law explicitly states that a child born out of a surrogacy procedure shall be deemed to be the biological child of the intending couple. The surrogate mother has no parental rights over the child. This is vital for inheritance and succession purposes.

Furthermore, the Act makes it a serious criminal offense to abandon a child born through surrogacy for any reason—be it a birth defect, gender, or medical condition. The intending parents are legally bound to accept custody of the child. The birth certificate will carry the names of the intending parents (genetic parents), not the surrogate.

Are same-sex couples or live-in partners eligible?

India's surrogacy laws are conservative regarding family structure. The Act defines a "couple" strictly as a legally married Indian man and woman. This definition explicitly excludes LGBTQ+ couples and live-in partners. Despite the decriminalization of homosexuality in India, the right to commission a surrogacy has not been extended to same-sex relationships.

This exclusion has been challenged in courts, but as of 2026, the statutory ban remains in force. Same-sex couples looking for surrogacy options often have to look to jurisdictions with more inclusive laws, such as the United States or Colombia.

What happens if I violate the surrogacy laws?

The government takes these regulations very seriously. Offences such as undertaking commercial surrogacy, exploiting a surrogate mother, abandoning a child, or selling human embryos are cognizable, non-bailable, and non-compoundable. This means if you are charged, you cannot settle the matter out of court, and getting bail will be difficult.

This strict penal code applies to everyone involved: the intending parents, the clinic, the doctors, and any middlemen or agents. It is vital to work only with registered clinics that follow the letter of the law to avoid severe legal jeopardy.

How do I find a registered surrogacy clinic?

Under the new regime, all fertility and surrogacy clinics must be registered with the National and State Surrogacy Boards. A list of these registered entities is typically available on the government's health department websites. You should ask any clinic for their registration number before booking a consultation.

Do not rely on third-party "agents" or facilitators who promise to find you a surrogate for a fee. Advertising for surrogacy is banned, and the process of finding a "willing woman" must be done transparently and ethically, usually through the clinic's internal verified programs or your own network.

Start Your Journey with Confidence

Surrogacy in India has transformed from a commercial industry into a regulated, ethical path to parenthood. While the rules are strict, they are designed to provide legal certainty and safety for everyone involved—especially the baby. By understanding eligibility, securing the right certificates, and respecting the altruistic spirit of the law, you can navigate this process successfully.

If you are ready to explore your legal options for surrogacy in India, PlacidWay can guide you. We connect you with top-rated, government-registered fertility clinics that adhere to every compliance standard of the 2026 laws. Let us help you take the first legal and safe step toward your family.