Surrogacy in India has changed more in the last decade than in the previous three combined. At one time, international intended parents flew into Delhi, Mumbai or Gujarat to work with clinics that openly advertised commercial packages. That era is over.
Today, surrogacy in India is tightly regulated, limited to a narrow set of people, and surrounded by paperwork. If you are trying to understand how surrogacy works now, not how it worked ten years ago, you have to start with the law.
I will walk through how surrogacy is done in India from a legal and practical lens: who is eligible, what contracts still matter, how parental rights are recognised, and when courts step in.
The legal backbone: what actually governs surrogacy in India
Two central laws currently shape surrogacy in India:
The Surrogacy (Regulation) Act, 2021, along with its 2022 Rules. The Assisted Reproductive Technology (Regulation) Act, 2021, which governs IVF clinics and ART banks.Together, they answer a set of core questions that everyone asks in some form: how is surrogacy done under Indian law, who can be a surrogate in India, and what exactly do “altruistic surrogacy in India” and “gestational surrogacy in India” mean in practice.
At a high level, the law does four things.
First, it bans commercial surrogacy. That means no payment to the surrogate beyond reasonable medical and pregnancy-related expenses and valid insurance. Any “package” that includes a fee or “compensation” for carrying the pregnancy is illegal.
Second, it allows only altruistic surrogacy, and only gestational surrogacy. The surrogate cannot use her own eggs. Traditional surrogacy, where the surrogate is genetically related to the child, is not allowed.
Third, it limits surrogacy to very specific categories of people, both for intended parents and for the surrogate mother. Foreign couples and single foreigners are excluded. Even many Indian citizens who might expect to qualify do not.
Fourth, it creates a licensing and oversight structure: national and state surrogacy boards, district medical boards, and registration requirements for clinics and surrogacy centres.
The text of the Act is one thing. How it works when you walk into a clinic in Pune or Chennai is another. That is where process, contracts and court practice start to matter.
Who can use surrogacy in India today
The most common surprise families face is discovering that they do not actually qualify under the current surrogacy laws in India. The eligibility rules are narrow and occasionally shift by way of notifications and court decisions, so any serious plan should include a fresh legal check.
Broadly, current law and its interpretation allow surrogacy only for:
- Indian heterosexual married couples who meet age and medical criteria. In some states, single Indian women (widowed or divorced) who meet strict conditions, typically for gestational surrogacy using donor sperm and their own eggs, but only if specific local rules and board approvals permit it.
Foreigners, OCI cardholders and PIO cardholders are excluded under the 2021 Act, even if they previously used surrogacy in India. NRIs with Indian passports may sometimes qualify, but they need to clear an additional layer of documentation and, later, citizenship and travel paperwork for the child.
For married couples, the Act sets age bands in most cases: the woman between roughly 23 and 50, the man between 26 and 55. District medical boards also look at infertility or medical conditions that justify surrogacy. Surrogacy is not a lifestyle choice in the eyes of the law. There has to be a medical reason.
Many couples ask whether they can simply claim that IVF has failed, without detailed records. In practice, boards ask for concrete evidence: IVF reports, test results, treating doctor’s notes, and a clear opinion that pregnancy is risky or not possible.
Who can be a surrogate in India
The surrogate mother is now more than a willing participant. She is central to the regulatory scheme. To be approved as a surrogate in India, she must usually:
- Be a married Indian woman with a child of her own. Fall within a fixed age band, often 25 to 35 years. Act as a surrogate only once in her lifetime. Have a medical fitness certificate and a mental health evaluation.
The requirement that she already has a child serves two purposes. It shows she understands pregnancy and childbirth, and it provides at least one child in her own family if surrogacy poses a health risk, despite safeguards.
There is also a family consent angle. While the surrogate’s own consent is paramount, clinics and boards frequently insist on her husband’s written consent, and at times even discuss the decision with other adult family members. This is not formally written in every line of the Act, but in practice, no clinic wants to be pulled into a domestic dispute later.
Another important point is the “one surrogacy only” rule. Women who acted as surrogates before the current law sometimes assume they can do so again. That is rarely allowed now, and clinics that try to work around this face real penalties.
Types of surrogacy: what is actually allowed
The law uses several terms in a way that often confuses families, especially those reading older articles online. Clarifying them is essential if you are trying to understand how does surrogacy work under current regulation.
Commercial surrogacy is prohibited. You cannot pay a higher fee for twins, for caesarean delivery, or for “special care”. Any exchange of money beyond documented medical expenses, insurance premiums and some permissible incidental costs risks criminal liability for all involved.
Altruistic surrogacy in India is the permitted model. Here, the surrogate is typically a close relative or a known person who agrees to help without profit. In reality, most families still support the surrogate in ways that are not purely medical: nutritional supplements, clothing, help with childcare for her own children, or lost-wage support. The key is transparency and documentation. Hidden or lump-sum “fees” invite scrutiny.
Gestational surrogacy in India is the only form allowed. The embryo is created using either the intended mother’s egg and intended father’s sperm, or using donors where permitted, which are then transferred to the surrogate’s uterus. The surrogate carries the pregnancy but has no genetic link to the baby.
Traditional surrogacy, where the surrogate’s own egg is fertilised (even through IVF) and she is the genetic mother, is not allowed. If a clinic quietly offers such an arrangement, walk away. You are looking at not just legal risk, but a potential parentage dispute later.
How does surrogacy work step by step in India
Clients usually arrive with this exact question: how is surrogacy done, practically and legally, under current law. The answer is that there are two parallel tracks that must move together. One is medical - IVF workups, embryo creation, and pregnancy monitoring. The other is legal and administrative - permissions, affidavits, and certificates that establish surrogacy as lawful and the child’s parentage as clear.
In real life, the surrogacy process in India unfolds something like this:
Medical evaluation of intended parents and tentative surrogate, to check fertility, overall health and suitability. Legal and regulatory screening, including age, marital status, citizenship, and prior children, followed by preparation of consent forms and draft surrogacy agreement. Application to the appropriate authority or district medical board for approval, with medical opinions explaining why surrogacy is needed and confirming fitness of the surrogate. Once approval is granted, creation of embryos through IVF at a registered ART clinic, followed by embryo transfer into the surrogate’s uterus at a registered surrogacy clinic. Pregnancy monitoring, insurance coverage, management of any complications, and eventually delivery at a registered hospital, after which the birth certificate is issued in the names of the intended parents, if all paperwork is in order.Different states insert their own smaller steps and forms, but these five broad stages are consistent across most of India.
Two practical points often get missed.
First, timing. Approval by the district medical board can take weeks or even a few months, especially in districts where surrogacy cases are rare and officials are still learning the procedures. Couples who rush to create embryos before permissions are in place sometimes find themselves stuck, with frozen embryos and no legal way to transfer them to a surrogate.
Second, coordination between the ART clinic and the surrogacy clinic matters. Egg retrieval and embryo creation happen under the ART Act, while embryo transfer into the surrogate is regulated under the Surrogacy Act. Some centres are licensed for both, others are not. Misalignment here can raise awkward questions from boards and, if something goes wrong, from courts.
Surrogacy contracts: how much do they matter now
Before the Surrogacy (Regulation) Act, surrogacy contracts carried much of the legal weight. Parties tried to anticipate everything - from number of embryos to be transferred, to abortion decisions, to what would happen if intended parents separated. Courts treated these as private contracts, tempered by public policy and child welfare.
The new law cuts across that model. Some terms that used to appear in contracts are now simply illegal. You cannot, for instance, agree to pay the surrogate a fixed lump sum against live birth. You cannot legally require selective reduction of a multiple pregnancy for purely financial reasons.
So why bother with a surrogacy agreement at all. Because plenty of issues still need clear, written understanding, even if certain clauses are unenforceable or have to be aligned with statutory rules. In practice, a careful surrogacy agreement in India now usually covers:
- The parties’ identities, marital status, ages and citizenship, with proof attached. Medical protocols in broad terms, including number of embryo transfer attempts and which clinic will handle each stage. Responsibilities for costs: prenatal appointments, hospitalisation, bed rest if ordered, insurance premiums, and foreseeable non-medical expenses. Decision making in medical emergencies: who will be consulted, and how to act if the surrogate’s health conflicts with the pregnancy’s continuation. Confidentiality, privacy, and how the child may later be told about their birth story, if the parents choose to share it.
Courts in India generally support the idea that the surrogate is not the legal mother, provided the arrangement fits the Act, permissions are valid, and there is no exploitation. Even so, a badly drafted contract, or no contract at all, can create messy factual disputes about money, coercion or consent. That is when judges start looking more critically at the intended parents and the clinic.
I have seen cases where families downloaded a generic “surrogacy contract” from a foreign website, changed the names and signed it in a lawyer’s office. A year later, when they needed the hospital to issue a birth certificate or an embassy to grant a visa, those foreign clauses on payment or parental rights caused more harm than good, because they highlighted non-compliance with Indian law. Local context matters.
Parental rights: who is the legal parent, and when
For many intended parents, the core anxiety is not the IVF cycle or the pregnancy; it is whether the child will legally and socially be theirs. They want to understand how surrogacy works in terms of parental rights.
The Surrogacy Act tries to give a clear answer. The intended parents are to be treated as the legal parents, and the surrogate has no parental rights to the child, as long as the surrogacy is lawful and follows all conditions. The child is deemed the legitimate child of the intending couple, with all rights of inheritance.
At birth, the hospital issues a medical record that names the birth mother as the surrogate, because that is a medical fact. For legal purposes, however, the civil registration of birth should reflect the names of the intended parents, not the surrogate, assuming all approval letters and affidavits are on file. Some states have issued circulars to registrars clarifying this. Others handle it case by case.
Where donor gametes are used, the law protects donor anonymity. The donor has no legal relation to the child and cannot later claim rights. Conversely, the child cannot claim inheritance from the donor. This becomes relevant in inheritance planning. Many families now execute detailed Click for more wills once a child is born through surrogacy, to avoid any future challenge.
Parental rights also intersect with disability and health. The law specifically forbids intended parents from rejecting a child because of congenital disabilities, sex, or health conditions. Any clause in a contract that says otherwise will be unenforceable, and courts have taken a dim view of parents who behave as if they are consumers returning a defective product. The child’s welfare will always trump convenience.
When and why courts get involved
If everything goes smoothly, court procedures may be limited to routine matters, or not required at all. But when something goes wrong, the judiciary quickly becomes central. Understanding where disputes tend to arise helps families structure their arrangements with fewer surprises.
Birth certificate disputes are the most common. For example, a local registrar insists on listing the surrogate as the mother because they have never dealt with surrogacy, or because the hospital did not supply proper documentation. In these situations, intended parents often file a writ petition in the relevant High Court, asking for directions to issue or correct the birth certificate. Courts usually cooperate if the surrogacy complied with the Act and no trafficking or coercion is alleged.
Citizenship and passport issues crop up for NRIs and, historically, for foreign couples who began surrogacy arrangements before the new law. While fresh cross-border surrogacy is largely blocked, legacy cases still come to court, especially when a foreign government hesitates to recognise the birth certificate or the parentage. Indian courts tend to lean on the principle that the child should not suffer. They coordinate with embassies, sometimes appoint guardians temporarily, and direct governments to process applications faster.
Disputes between intended parents themselves are more painful. Separation or divorce during pregnancy or shortly after birth raises questions: who keeps parental responsibility, who will be recorded on the birth certificate, how maintenance will work. In one type of case, a father tried to distance himself once the relationship broke down, claiming he had not consented properly. Courts have largely rejected such attempts, stressing that a child born through surrogacy is entitled to the same stability as a child born naturally within marriage.
Finally, conflict between the surrogate and the intended parents, while rarer now than it was in early commercial surrogacy days, still happens. A surrogate may feel that promised support was not provided, or that medical decisions were pushed upon her. Intended parents may feel she is not following medical advice. When these reach court, judges examine conduct more than clauses. They look at text messages, clinic notes, and payment records to see who acted reasonably. Statutory requirements provide the baseline, but human behaviour decides outcomes.
Cross border layers: NRIs, foreign spouses and travel documents
The law’s sharp turn against surrogacy in India for foreign nationals has not fully resolved cross border complexities. NRIs, mixed-nationality couples, and Indians based abroad still ask whether and how surrogacy work can fit into their broader legal landscape.
For NRIs who hold Indian passports and meet all other conditions, surrogacy is sometimes possible, but they must think two or three steps ahead. The child’s citizenship, passport, and travel permissions depend as much on the foreign country’s laws as on Indian rules. Some countries refuse to grant citizenship if the intended parent has no genetic link, others insist on a court order from the country of birth confirming parentage.
This is where detailed planning with both an Indian lawyer and a lawyer in the intended country of residence becomes necessary. For example, some European nations treat surrogacy contracts as void on public policy grounds. Parents from those countries might need to pursue adoption or parental orders after returning, even if Indian law already treats them as legal parents.
Even for simple travel home, immigration officers occasionally ask uneasy questions at airports when they see a newborn with parents arriving from a surrogacy heavy state. Having notarised copies of approvals, medical certificates, and the birth registration helps. It is not only a matter of law, but of avoiding stress during what should be a bonding period.
Practical tips for navigating the law without losing your mind
For all the statutory detail, surrogacy in India still lives or dies by preparation and communication. A few habits genuinely reduce risk and anxiety:
- Keep a dedicated file, physical or digital, with every medical report, consent form, certificate and receipt. You will be surprised how often a minor clerk’s objection disappears once you show them a specific document. Use registered clinics that appear in the official ART and Surrogacy registries, and verify their licences are current. A fancy waiting room is not a substitute for compliance. Put uncomfortable topics on the table early with the surrogate and doctors: what to do in case of serious foetal anomaly, who decides about caesarean, how long post delivery care will continue. Silence on hard questions rarely ends well. Build in time for approvals and do not commit to work or travel plans around an assumed due date without buffer. Boards, like all government bodies, can be slow. Revisit your estate planning once the child is born. Surrogacy does not create second class children, but vague wills sometimes invite relatives to argue otherwise.
None of this removes the emotional and ethical complexity of surrogacy in India. It does, however, let you spend your energy where it belongs: on building a family, rather than firefighting avoidable legal problems.
The law has moved away from the older, unregulated market model to a smaller, more controlled space focused on gestational, altruistic surrogacy. That narrowing can feel frustrating if you do not fit neatly inside the statutory categories. But for those who do and who take the time to understand how surrogacy in India actually operates on the ground, it can still provide a valid, and legally solid, path to parenthood.