Surrogacy Law In India

Surrogacy is a method in which a woman consents to carry a child and go through gestation for it. When the child is born, it is then given to the couple who sought it. The surrogate mother will not raise the child but only acts as a gestational carrier after being implanted with an embryo.

Regulation in India

India lacks appropriate regulatory measures for the surrogacy business or more popularly known as baby-making business. It is a was a thriving business of $2.3Billion/annum before passing of The Surrogacy Act.

In 2016, the Surrogacy Bill was introduced in the Parliament which was passed 2 years later, on 18th December 2018. The act prohibits the increase of commercial surrogacy in India. The legislation aims and provides children to only those couples who could not bear children.


The acts provide that the person who is going to be a surrogate mother should be a close relative to the couple seeking a child. However, it does not define the who these ‘close relatives’ shall be. National Surrogacy Board has been established for the regulation and systematic governance of surrogacy practice in India.

The act requires the couple and the surrogate mother to have eligibility certificates to do so, which shall be released by competent authorities. The act puts the biggest limitations on foreigners and Non-Resident Indians (NRIs). They are no longer allowed to seek surrogacy in India. The decision was taken after many cases of abandonment of children, and child trafficking cases came to light.

The act does not cover the same-sex couples and hence, dampens the idea of equal rights to the LGBTQ+ community. The same applies to the people in relationships different from traditionally monogamous married ones, which means even single parents and live-in couples do not come under the purview of this act. The couple seeking surrogacy should be married for at least five years and mandatorily possess a competent registered doctor’s certificate, confirming their infertility.

Another limitation put by the act is that couples that already have children are not allowed to seek surrogacy in India. However, such couples can adopt children as per existing laws.

The act has often been criticised for to be a prohibition, more than a regulation. So in 2020 parliament of India approved the Assisted Reproductive Technology Bill for removing the prior law.


K.Kalaiselvi vs Chennai Port Trust (2013)

The Supreme Court in the landmark judgement of K.Kalaiselvi vs Chennai Port Trust (2013) has contended that “In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”

The court has further defined surrogacy into four types.

l  Traditional surrogacy (also known as the Straight method): The surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic.

l  Gestational surrogacy (also known as the Host method): The surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e.g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo.). The surrogate mother may be called the gestational carrier.

l  Altruistic surrogacy: Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

l  Commercial surrogacy: Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms.