Surrogacy Law in India: Rights of Surrogate Mother and Intended Parents

By Advocate Ganta Surya Kiran | 19 Law Chambers, Visakhapatnam | Family Law

Surrogacy where a woman carries and delivers a child for another couple is now strictly regulated in India through the Surrogacy (Regulation) Act, 2021. Furthermore, commercial surrogacy is completely banned. Moreover, altruistic surrogacy where a close relative carries the child without any payment beyond medical expenses is permitted under strict conditions. Consequently, couples seeking surrogacy must understand the new legal framework carefully before proceeding. Advocate Ganta Surya Kiran at 19 Law Chambers guides intended parents and surrogate mothers through the complete legal process in Andhra Pradesh.

What Changed Under the Surrogacy Regulation Act 2021?

The 2021 Act fundamentally transformed surrogacy law in India. Specifically, it: banned all commercial surrogacy completely no payment to the surrogate mother beyond medical expenses and insurance, restricted surrogacy to altruistic arrangements between close relatives only, established State Surrogacy Boards to regulate and monitor all surrogacy arrangements, required registration of surrogacy clinics with the National ART and Surrogacy Board, and made violation of the Act punishable with imprisonment up to 10 years and fine up to Rs 10 lakh. Consequently, the large commercial surrogacy industry that existed previously is now completely illegal.

Who Can Opt for Surrogacy in India?

The Act restricts who can seek surrogacy as intended parents. Specifically:

Indian Married Couples: A married couple husband between 26 and 55 years, wife between 23 and 50 years can opt for surrogacy if: the wife has a medical condition making pregnancy impossible or dangerous, certified by a District Medical Board. Moreover, the couple must have been married for at least 5 years. Consequently, couples who can conceive naturally cannot legally opt for surrogacy in India.

Widows and Divorcees: A widow or divorcee between 35 and 45 years of age can opt for surrogacy with their own eggs — not donor eggs. Furthermore, they must have a medical condition requiring surrogacy certified by the District Medical Board.

Not Permitted: Single men, unmarried couples, and same-sex couples are not currently permitted to opt for surrogacy under the 2021 Act. Moreover, foreign nationals and NRIs cannot opt for surrogacy in India.

Who Can Be a Surrogate Mother?

The Act places strict eligibility conditions on surrogate mothers. Specifically, the surrogate must be: a close relative of the intended couple not a stranger, between 25 and 35 years of age, married with at least one child of her own, medically fit for surrogacy certified by a medical authority, not a surrogate mother more than once in her lifetime, and must give free, informed, and written consent without any coercion. Furthermore, she cannot receive any payment beyond medical expenses and a 36-month insurance policy covering her health and life during the surrogacy period.

Legal Process for Surrogacy in India — Step by Step

Step 1 — Obtain Certificate of Essentiality and Eligibility The intended couple must obtain from the District Medical Board: a certificate of essentiality (confirming the medical need for surrogacy), and a certificate of eligibility (confirming the couple meets all eligibility conditions). Furthermore, the surrogate mother must also obtain an eligibility certificate. Consequently, no surrogacy arrangement can begin without these certificates.

Step 2 — Registration With State Surrogacy Board Register the surrogacy arrangement with the Andhra Pradesh State Surrogacy Board. Specifically, submit all certificates, the surrogacy agreement, and clinic details. Moreover, the Board verifies compliance with all legal requirements before approving the arrangement.

Step 3 — Surrogacy Agreement Execute a legally compliant surrogacy agreement drafted by an advocate clearly specifying: the rights and responsibilities of both parties, medical procedures involved, compensation arrangements (limited to medical expenses and insurance), parentage of the child, and the surrogate’s right to withdraw consent before embryo implantation. Importantly, the agreement must be approved by the State Surrogacy Board.

Step 4 — Court Order for Parentage After the child’s birth obtain a court order establishing the intended parents as the legal parents of the child. Furthermore, this court order is necessary for issuing the child’s birth certificate in the intended parents’ names. Consequently, without this order, the surrogate mother remains the legal mother under Indian law regardless of the surrogacy agreement.

Frequently Asked Questions

Q: Is commercial surrogacy completely banned in India?
Yes — completely. Furthermore, even paying the surrogate mother beyond actual medical expenses and insurance is punishable with imprisonment up to 10 years. Consequently, any clinic or agent offering paid surrogacy arrangements is operating illegally.

Q: Can a couple’s sister act as surrogate mother?
Yes — a sister of either the husband or wife qualifies as a “close relative” under the Act. Moreover, she must independently meet all the eligibility conditions age, married with own child, medical fitness, and free consent. Furthermore, she cannot be compensated beyond medical expenses and insurance.

Q: What are the surrogate mother’s rights if the intended parents abandon the child?
If intended parents abandon the child they remain legally responsible for the child’s welfare. Moreover, the surrogate mother cannot be compelled to keep the child. Consequently, the court can make specific custody arrangements in the child’s best interests. Free legal aid: NALSA — nalsa.gov.in | Free Legal Aid in AP.

Also read: Adoption Law India Process | Child Custody Rights India | Best Lawyers in Vizag

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