Surrogacy can be one of the most emotionally intense journeys a family ever undertakes. When you add cross-border laws, changing regulations, and immigration formalities, it becomes even more complex. I often meet NRI and Overseas Citizen of India (OCI) couples who arrive thinking India is still the global hub for commercial surrogacy it once was, only to discover that the legal landscape has changed dramatically.
If you live outside India and are considering a surrogate in India, you need a very clear understanding of what is allowed, what is banned, and where there is still confusion. The decisions you take at the start often decide whether your path ends in a smooth homecoming with your baby, or years of legal and bureaucratic struggle.
This is a practical guide, based on how surrogacy in India actually works today under the Surrogacy (Regulation) Act 2021, subsequent rules, and the latest court interpretations, especially for NRIs and OCIs.
How surrogacy in India changed: from commercial hub to tight regulation
For more than a decade, India was known for relatively affordable commercial surrogacy. Clinics openly advertised packages, foreign couples flew in for IVF cycles, and Indian surrogates were paid substantial compensation. That period is over.
Concerns about exploitation, lack of safeguards, and custody disputes pushed lawmakers to intervene. There were also uncomfortable cases of commissioning parents abandoning children with disabilities or changing their minds mid-way. By around 2015, the government started clamping down on foreign intended parents. Over the years, each new regulation narrowed what was allowed.
The major turning point came with the Surrogacy (Regulation) Act 2021 and its rules, followed by adjustments and clarifications in later notifications and court orders. The law did three crucial things.
First, it completely banned commercial surrogacy in India.
Second, it allowed only altruistic surrogacy in India, with strict conditions on who can be a surrogate, who can be an intended parent, and what can be paid.
Third, it imposed criminal penalties for violations, which means this is no longer a grey area you can navigate by “managing paperwork”. If you get it wrong, you, your doctor, and your surrogate can all be in legal trouble.
For NRIs and OCIs, the impact is even more complicated, because you sit at the intersection of Indian law and the law of the country where you actually live.
Altruistic surrogacy in India: what the law really means
The phrase “altruistic surrogacy in India” sounds warm and noble. In practice, it means the law only allows a surrogate to be compensated for medical expenses, insurance, and some pregnancy-related costs. No large “fee” or commercial benefit is permitted.
The intent is clear: protect women from being treated as paid wombs, and ensure surrogacy is used as a last resort for genuine infertility, not as a lifestyle choice.
A few key angles matter for you as an overseas Indian:
First, only gestational surrogacy in India is allowed. This means the surrogate cannot use her own eggs. She only carries an embryo created from the gametes of the intended parents (and in some cases, an egg or sperm Home page donor, subject to separate ART law rules). Traditional surrogacy, where the surrogate is also the genetic mother, is not permitted.
Second, the surrogate must be doing it for altruistic reasons, typically as a close relative. Earlier drafts of the law insisted on a “close relative” surrogate, which created almost impossible situations for many couples. Later guidelines eased this somewhat, but the spirit remains: no surrogacy market, no brokers, no agency-style recruitment of poor women.
Third, the financial aspect is under tight scrutiny. You can cover medical fees, maternity clothing, adequate diet, and insurance coverage for a specified period (often 36 months) after birth. Anything that looks like “payment to rent the womb” puts everyone at risk.
In practice, this often means surrogacy is only feasible for families who already have a trusted woman in their circle who is willing to carry a pregnancy without expecting a large payout. For many NRIs and OCIs, that is a major limiting factor.
Who can opt for surrogacy in India: eligibility for intended parents
One of the most misunderstood parts of the current regime is who is actually allowed to undergo surrogacy in India. The eligibility rules are strict and not always intuitive.
At a high level, the current position is:
- Only an Indian heterosexual married couple, or in some situations a single Indian woman (widow or divorcee) who meets specific criteria, can be commissioning parents under the Surrogacy (Regulation) Act. Same-sex couples, unmarried couples, and foreign nationals are excluded. NRIs and OCIs are in a grey zone and have largely been treated as “foreigners” by the authorities, even if they hold Overseas Citizen of India cards.
This is where many NRI couples get surprised. They assume “I am still Indian by roots, so Indian law should treat me like any Indian citizen,” but the surrogacy law focuses heavily on citizenship and domicile. If you are a citizen of another country, even if you were born in India and hold OCI status, you are typically not allowed to commission surrogacy in India under the current reading of the law.
Courts have occasionally stepped in for specific hardship cases, but those are exceptions, not a blanket policy. You cannot safely plan on “getting an exemption” later. Officials are wary, clinics are cautious, and most respectable fertility centers will refuse to handle surrogacy cycles for NRIs and OCIs unless they are absolutely satisfied you fall within the letter of the law.
If you and your partner are both Indian citizens living abroad, but not yet foreign citizens, your position is better. You still need to show proof of marriage, age limits (often the female partner must be in a certain age band, typically something like 23 - 50, and the male partner 26 - 55, though states and guidelines can vary slightly), and medical proof that you cannot carry a pregnancy. Repeated IVF failures, absence of uterus, certain medical conditions like severe heart disease or high-risk illnesses can qualify.
One more important point: the law is designed for couples intending to have their “first” child through surrogacy, not for those who already have biological children and simply prefer not to be pregnant. There are narrow medical exceptions, but they need to be properly documented and certified by the appropriate board.
How does surrogacy work medically: a quick walkthrough
Legal and ethical debates often overshadow a simple question many couples still ask: how is surrogacy done, practically, inside the clinic?
For gestational surrogacy in India, the medical steps are roughly similar to an IVF cycle, just split between two women.
Your eggs are retrieved after hormone stimulation. Your partner’s sperm (or donor sperm, where permitted and necessary) is used to fertilize the eggs in the lab. Embryos are created and grown for a few days. Then one or two selected embryos are transferred into the surrogate’s uterus.
The surrogate then carries the pregnancy, attends prenatal checkups, and delivers the baby, usually in the same or a partner hospital. The baby is genetically yours (except in donor gamete scenarios). The surrogate has no genetic link, only a gestational one.
From a purely medical standpoint, this is well understood and widely practiced technology. The real complexity today lies not in “how does surrogacy work” clinically, but in whether your specific situation is even legal, and what happens after birth for citizenship and parentage.
The surrogacy process in India: legal and administrative steps
If you are eligible under the law, the surrogacy process in India is no longer something you can manage casually through a clinic alone. You are dealing with multiple layers of oversight.
To keep it clear, here is a quick high-level roadmap of the non-medical steps, assuming you are legally permitted to pursue surrogacy in India:
- Obtain a medical certificate from a district-level or state-level Appropriate Authority that confirms your infertility or medical reason for surrogacy. Secure approval from the competent surrogacy board or authority in your state, including verification of your documents, marriage status, and age. Identify a surrogate who meets legal criteria: age limits, parity (usually she must have at least one living child of her own, and not be undergoing multiple surrogacies), and relationship conditions if any still apply in your state. Draft and register a surrogacy agreement that complies with the law, clearly covering medical care, responsibilities, and financial coverage, while avoiding any commercial elements. Once pregnant, maintain regular documentation of prenatal care, insurance coverage, and eventual birth registration, to support entry of your names as parents on the birth certificate.
That list looks deceptively short, but in practice couples often spend months gathering documents, getting files moved between offices, clarifying changing rules with clinics, and chasing signatures. Some states implement the law more smoothly, others are still adjusting.
For NRIs and OCIs, there is an added parallel track: staying in close touch with your consulate or embassy and understanding what your home country will require to recognize the child as your legal offspring and grant citizenship or a passport.
The Surrogacy Regulation Act and related rules: what matters for NRIs and OCIs
The Surrogacy (Regulation) Act 2021 and its rules, read together with the Assisted Reproductive Technology (ART) Act, form the backbone of the legal regime. You may see references to the “surrogacy regulation bill” in older articles or news items. That bill is now law, with several tweaks at the rules and implementation level since then.
From the perspective of NRIs and OCIs, a few provisions are especially important.
The definition of who can be a “commissioning couple” is tied to being a married Indian man and woman, within certain ages, fitting specific medical conditions, and generally having no surviving biological or adopted child. There is a clause about “any other condition or requirement that may be specified” which gives the government power to adjust rules. That is where a lot of detailed eligibility criteria sit.
The law prohibits foreign nationals, Persons of Indian Origin (PIOs), and OCIs from commissioning surrogacy in India. The stated reason is to avoid India becoming a global surrogacy destination again, and to avoid jurisdictional conflicts where the child’s legal status in the foreign country might clash with Indian safeguards.
However, NRIs who are still Indian citizens but resident abroad sit in a more favorable position. The law does not automatically exclude them. The challenge typically comes from the practicalities: coordinating surrogacy boards in India with immigration authorities abroad, handling long absences from work during the process, and dealing with high emotional stakes across time zones.
Another important element is criminalization. Participating in commercial surrogacy, acting as an unregistered clinic, or arranging surrogacy for ineligible couples can attract fines and imprisonment. For you, it means you should be very cautious of any “shortcut” suggestions, like using a relative’s name on paper while you are the real parent, or paying the surrogate secretly in cash. These strategies might have worked in the earlier, loosely regulated era. Now they carry real risk.
Birth certificates, citizenship, and taking your baby home
Assuming you are legally entitled to surrogacy, the pregnancy progresses well, and the surrogate delivers a healthy baby. The next big hurdle is legal parentage and citizenship.
Under Indian practice, the goal is for the intended parents’ names to appear on the child’s birth certificate. Since the surrogate is not supposed to be the legal mother, hospitals and municipal authorities need your surrogacy approval documents, the registered agreement, and often letters from the appropriate authority confirming that you are the commissioning couple.
For NRIs who are still Indian citizens, the child will be an Indian citizen by birth, with an Indian birth certificate. Your task then is to secure a passport or travel document from the Indian authorities and resolve your child’s status in the country where you live. Some countries recognize foreign surrogacy easily, others are much tougher, especially if surrogacy in that country is heavily restricted or illegal.
For OCIs and foreign citizens, life is trickier. If you have somehow managed to undergo surrogacy in India despite the legal hurdles, your home country’s authorities might question the process. Some countries will insist on DNA tests to confirm your biological link to the child. Others might ask for a court order from India clarifying parentage. Embassies generally move carefully in surrogacy cases, to avoid trafficking or fraud.
I have seen families stuck in India for months with newborns, waiting for foreign passport approvals while their jobs and older children are back home. This is emotionally and financially draining. Planning ahead, understanding your home country’s position on overseas surrogacy, and keeping all your Indian legal paperwork airtight can prevent much of that.
Common misconceptions NRIs and OCIs still carry
Despite years of tight regulation, a few myths keep surfacing in conversations with overseas Indians.
The first misconception is that a friendly clinic can “somehow manage” the paperwork if you have money. Good clinics today are more afraid of losing their license than of missing your business. If a clinic is promising miracles that contradict the law, take that as a warning sign.
Second, many couples believe that because surrogacy is altruistic on paper, they can simply pay the surrogate unofficially. Apart from being illegal, it creates leverage and mistrust on both sides. If a dispute arises later, you have no enforceable record of what was agreed. The surrogate might also be pressured by others once they sense there is undeclared money involved.
Third, there is confusion between IVF and surrogacy regulation. Some NRIs think, “We are only doing IVF in India and taking our embryos abroad, so these surrogacy laws do not apply.” That is partially true. The surrogacy laws apply when an Indian surrogate carries the pregnancy. If you create embryos in India and export them legally to have surrogacy in another country, you fall under a different web of laws. But clinics still need to follow ART rules around gamete and embryo handling, and you must comply with import rules in your destination country. It is complex, but not impossible if both jurisdictions allow it.
Fourth, some assume that if one partner is still an Indian citizen and the other is foreign, they can squeeze through eligibility gaps. In reality, mixed citizenship couples often face more scrutiny, not less. Authorities want to avoid a situation where a child is stuck between two countries, belonging cleanly to neither.
Practical advice if you are overseas and exploring surrogacy in India
If you are an NRI or OCI, and you are at the stage of googling “how surrogacy work” or “surrogacy process in India” late at night, your head is probably already spinning. A few grounded steps can help you move from wishful thinking to a realistic plan.
First, get clarity on your own legal status. Are you still an Indian citizen? Have you taken citizenship of another country? Do you hold only an OCI card? Many people are surprisingly vague about when exactly they renounced Indian citizenship, and that line matters enormously under the surrogacy laws in India.
Second, speak to both an Indian lawyer familiar with surrogacy and a legal expert or immigration consultant in your current country of residence. You are dealing with at least two legal systems, and both need to align for the outcome you want: your child living with you, recognized as yours, without years of court battles.
Third, independently verify what the clinic is telling you. Fertility centers vary widely in how accurately they present the law. A center that is excellent medically may be completely outdated legally. Ask them specifically how they comply with the Surrogacy (Regulation) Act, what their experience has been with NRI or OCI clients since 2021, and if they have faced any legal notices or issues.
Fourth, consider alternatives early. If Indian law does not permit your situation, pushing against it rarely works. Some couples redirect to countries like the United States, Canada, or specific European or Latin American jurisdictions that allow compensated or regulated surrogacy for foreigners. These options are usually much more expensive, but legally clearer for cross-border families.
Fifth, keep your mental and emotional bandwidth in mind. Surrogacy is not only a financial or legal project. It is years of waiting, hoping, worrying through someone else’s pregnancy, and managing cultural, generational, and family expectations. NRIs often juggle this across continents, which adds another layer of strain. Having one trusted point of contact in India, whether a sibling, parent, or close friend, to help with local follow-ups can make the experience more bearable.
When surrogacy in India is not an option for you
Many NRIs and OCIs come to the painful realization that, under current surrogacy laws in India, they simply do not qualify. It is better to face that firmly than to cling to false hope.
If you are a same-sex couple, if you are unmarried and not in a legally recognized Indian marriage, if both of you are foreign citizens without Indian citizenship, or if you already have children and simply prefer surrogacy over pregnancy without strong medical reasons, Indian law is not on your side right now.
That does not mean you have no path to parenthood. It means India is not the jurisdiction where that path runs smoothly. Some couples turn to domestic adoption in the country where they reside. Others pursue IVF using donor eggs or sperm, and some explore surrogacy in more permissive countries.
The key is not to let outdated information about India’s reputation as a surrogacy hub mislead you. That era, with loose oversight and commercial contracts, is over. The current framework is protectively narrow, with altruistic surrogacy as an exceptional measure for very specific Indian families.
A realistic path forward
If you are overseas and strongly connected to India, it is natural to want your child to be born there, carried by someone you trust, within a system and culture you understand. For some Indian citizen couples living abroad, that is still possible with careful legal and medical planning, fully compliant with the Surrogacy (Regulation) Act and related rules.
For NRIs who have taken foreign citizenship, for OCIs, and for many mixed-status couples, India has effectively closed the door to surrogacy as an option, at least for now. That may feel unfair, especially when your emotional and cultural identity is deeply Indian. But building your family on a shaky legal foundation rarely ends well.
If you do one thing after reading this, let it be this: before you start asking “how is surrogacy done” or calling clinics to understand their packages, sit with a lawyer and your partner and determine whether surrogacy in India is actually lawful and logistically workable in your specific case. Once that answer is clear, the rest of the steps - whether in India, your current country, or somewhere else - become much easier to plan.
Surrogacy, wherever you pursue it, deserves both your heart and your head. India’s laws today demand that you use both.