Introduction
India was, for nearly two decades, one of the world’s most significant destinations for commercial surrogacy. Fertility clinics proliferated across cities like Anand in Gujarat and Hyderabad in Telangana, attracting intended parents from Europe, North America, Australia, and elsewhere. The economic logic was straightforward: surrogacy was far cheaper in India than in the few jurisdictions where it was legal in the West, and the regulatory vacuum made it operationally simple. Surrogate women, often from economically marginalised communities, entered arrangements that carried significant physical risk for compensation that, while modest by global standards, represented substantial income in their local contexts.
The legislative response to this industry has been sweeping and, in the view of many scholars, excessively restrictive. The Surrogacy (Regulation) Act 2021, which came into force in January 2022, prohibits commercial surrogacy entirely and restricts altruistic surrogacy to a narrow category of intended parents using an equally narrow category of eligible surrogates. The Act’s companion legislation, the Assisted Reproductive Technology (Regulation) Act 2021, establishes the broader regulatory architecture for fertility treatment but cannot by itself compensate for the exclusions built into the surrogacy framework. This article examines the Act in practice, assessing whether its provisions adequately protect the interests they claim to serve, what practical complications have arisen in the altruistic surrogacy model it mandates, and what directions reform ought to take.
Legal Framework
The Surrogacy (Regulation) Act 2021 rests on three foundational choices that shape everything else in the statute. First, the Act prohibits commercial surrogacy and permits only altruistic surrogacy, defined as an arrangement where the surrogate carries the child without any financial benefit beyond medical expenses and insurance. Second, the Act restricts the category of eligible intended parents to Indian citizens who are married couples, where the wife suffers from a medical condition necessitating surrogacy, with narrowly defined exceptions for widows and divorcees. Third, the Act restricts the category of eligible surrogates to “close relatives” of the intended couple, which in practice means a sister or sister-in-law, since the Act requires a genetic or family connection that most extended relatives do not satisfy.
The ART (Assisted Reproductive Technology) Act 2021 establishes ART banks (for the registration and regulation of gamete donors), ART clinics (which must be registered with the relevant State ART Authority), and the National ART and Surrogacy Registry. The ART Act contains provisions on donor anonymity, age limits for gamete donation, limits on the number of times a woman may donate eggs, and consent requirements for gamete and embryo use. Together, the two Acts were intended to replace the regulatory vacuum with a comprehensive framework. The question is whether the framework they create is appropriately calibrated.
The Surrogacy Boards at the national and state levels are responsible for administering the Acts, issuing certificates of eligibility, and maintaining records. Intended parents must obtain a Certificate of Essentiality (certifying the medical need for surrogacy) and a Certificate of Eligibility before a surrogacy agreement can be entered into. The surrogate must independently obtain her own Certificate of Eligibility, which requires certification by a registered medical practitioner and by the appropriate authority that the arrangement is genuinely altruistic.
Judicial Developments
The courts have been called upon to resolve a number of questions arising from the Act’s implementation, many of them involving the eligibility restrictions. In 2022 and 2023, several petitions were filed before High Courts and the Supreme Court challenging the exclusion of single persons, same-sex couples, and widowers from the category of eligible intended parents. The Supreme Court’s intervention in this area has been significant.
In 2023, the Supreme Court in a petition filed by a single woman seeking to avail surrogacy after a medical condition rendered natural conception impossible, directed the Central Government to constitute an expert committee to examine whether the exclusion of single persons and widowers from the eligible intended parent category was justified. The committee’s report recommended limited expansion of the eligibility criteria to include widows and single women, which was given effect to through an amendment to the rules under the Act. The amendment was, however, restricted to women with specific medical conditions and did not extend the right to single men, same-sex couples, or foreign nationals.
On the “close relative” surrogate requirement, courts have encountered the practical problem that many women who wish to act as surrogates for infertile family members do not satisfy the technical definition of “close relative” as interpreted by the relevant boards. Sisters-in-law in some family structures do not have a formal legal relationship with the intended mother, and the certification process has varied significantly across states. The Bombay High Court in 2023 directed the Maharashtra State ART Authority to reconsider its interpretation of “close relative” in a case where a cousin offered to be a surrogate, finding that the Authority’s reading was excessively narrow and inconsistent with the Act’s intent to facilitate altruistic arrangements within families.
The Supreme Court also addressed the retrospective application of the Act to ongoing surrogacy arrangements in a 2022 order, holding that arrangements entered into before the Act’s commencement could continue to completion, providing transitional protection to intended parents and surrogates who had begun the process under the previous framework.
Contemporary Issues and Analysis
The central analytical problem with the Act’s altruistic surrogacy model is that “altruistic” is something of a misnomer when the arrangement is viewed in the context of family dynamics. A woman who carries a pregnancy for her sister or sister-in-law is not making a free choice in any simple sense: she is embedded in family relationships that may generate significant social pressure to agree, and the absence of financial compensation does not eliminate the economic sacrifice involved in nine months of restricted activity, physical risk, and recovery time.
The Act’s restriction of compensation to medical expenses and insurance is also practically difficult to enforce. No instrument exists to prevent informal compensation from flowing between the intended parents and the surrogate within the family; the Act simply creates a legal fiction of altruism while creating conditions in which such fictions are likely to operate. The result may be that altruistic surrogacy in practice mirrors commercial surrogacy in substance but without the regulatory protections, formal contracts, and clear legal documentation that a properly regulated commercial arrangement would provide.
The exclusion of commercial surrogacy has also driven intended parents, particularly foreigners and same-sex couples, to seek surrogacy in other jurisdictions. Georgia, Ukraine (before the war severely disrupted its fertility industry), and certain states in the United States have become alternative destinations. The Indian ban has not eliminated commercial surrogacy globally; it has merely relocated it and deprived Indian women of an economic opportunity while removing the regulatory oversight that would have protected them.
For surrogate mothers, the Act’s insurance and medical expense protections are an improvement over the unregulated pre-Act situation, but they are inadequate compensation for the risks undertaken. A woman who suffers permanent health consequences from a surrogacy pregnancy has no clear legal remedy against the intended parents under the Act beyond the insurance policy, which may cover medical treatment but not lost income, long-term care, or non-economic harms.
Comparative and International Perspective
The United Kingdom’s Surrogacy Arrangements Act 1985 is a severely outdated instrument that prohibits commercial surrogacy and imposes no regulatory framework on altruistic arrangements, which operate on the basis of informal agreements and post-birth parental orders. The Law Commission of England and Wales published a joint report with the Scottish Law Commission in 2023 proposing a comprehensive reform. The proposed framework would create a “surrogacy pathway” under which intended parents who meet eligibility criteria and complete pre-conception counselling and legal advice could be recognised as legal parents from birth (rather than requiring a court order). The proposals maintain the prohibition on commercial surrogacy but acknowledge that the “expenses only” model needs to be defined more generously to reflect genuine costs.
Ukraine’s commercial surrogacy industry, which was one of the world’s largest before 2022, was built on a legal framework that permitted commercial surrogacy for foreign intended parents and Ukrainian married couples, required the surrogate to have no genetic connection to the child, and provided that the intended parents were the legal parents from birth. The industry’s disruption by the war in Ukraine has created a humanitarian crisis, with surrogate mothers caught in conflict zones and intended parents unable to reach their children.
Canada has adopted a model that prohibits payment beyond reimbursement of genuine out-of-pocket expenses, with federal criminal law sanctions for commercial surrogacy, while permitting altruistic arrangements. The Canadian approach has been criticised for the same reasons as the Indian approach: the restriction to altruism creates a hidden economy of informal compensation and fails to acknowledge the labour involved in surrogacy.
Practical and Policy Implications
The practical implications of the Act for women who might wish to be surrogates are severe. The pool of eligible surrogates has been dramatically reduced to the point where many intended parents who satisfy the eligibility criteria are unable to find a qualifying surrogate within their family. The “close relative” requirement assumes a family structure that is becoming less common in urban India and that may not correspond to the social networks of many infertile couples.
For clinics and fertility practitioners, the registration and certification requirements have increased administrative burdens substantially. The National Registry has been slow to operationalise, creating delays in processing eligibility certificates that in turn delay treatment for couples facing age-related fertility decline.
The exclusion of foreign nationals from the eligible intended parent category has effectively ended India’s position as a global surrogacy destination, which was the policy intention. But it has done nothing to address the domestic demand for surrogacy from Indian couples who cannot access altruistic arrangements within their families.
For the women who do act as surrogates under the Act, the absence of independent legal representation in the negotiation of surrogacy agreements raises concerns about the quality of consent and the adequacy of protection. The Act requires that the surrogate be independently counselled, but it does not require that she have independent legal advice on the terms of the agreement, a gap that comparative practice in Australia and New Zealand (which require independent legal advice for all parties) suggests should be filled.
Suggestions and Reforms
A reformed surrogacy framework for India should abandon the binary of altruistic versus commercial surrogacy and instead build a regulated compensated surrogacy model. Surrogates should be entitled to a fair, government-prescribed fee that reflects the genuine economic value of the service, the risks undertaken, and the income foregone. This fee should be transparent, mandatory, and paid through a regulated escrow mechanism to prevent exploitation in either direction.
The eligibility criteria for intended parents should be expanded to include single persons of either gender, same-sex couples (at least in states where such relationships are legally recognised or protected), and widowers, recognising that the desire to have children and the capacity to parent them are not confined to married heterosexual couples.
The “close relative” requirement for surrogates should be replaced with a broader category of willing and eligible women who meet age, health, and independent consent criteria, with counselling and legal advice requirements that apply equally to all surrogates regardless of their family relationship to the intended parents. Expanding the pool of eligible surrogates would reduce the pressure on family relationships and increase the likelihood that arrangements are genuinely voluntary.
The insurance requirements should be enhanced to cover long-term health consequences of surrogacy, lost income during pregnancy and recovery, and non-economic harms, with premiums set at levels that genuinely reflect the risks involved.
Conclusion
The Surrogacy (Regulation) Act 2021 represents a legislative overcorrection that has, in attempting to eliminate exploitation, instead driven surrogacy underground or abroad while failing to protect the rights of the women it claims to centre. The altruistic surrogacy model is operationally flawed because it creates conditions for informal commercial arrangements without the legal protections that a regulated market would provide. The eligibility restrictions exclude large categories of intended parents who have legitimate needs and constitutional claims to family formation.
The comparative experience suggests that the binary of altruism versus commerce is false: what matters is transparency, fair compensation, independent consent, and robust regulatory oversight. India has the institutional capacity to build such a framework. The question is whether the political will exists to move beyond a moralistic framing of surrogacy that has consistently failed both the women who become surrogates and the families who need them.
