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Surrogacy Law in India 2026: Eligibility, Legal Process, Documents and Rights of Intending Parent

For many couples, the decision to explore surrogacy comes after years of medical consultations, fertility treatments and difficult personal choices. It can represent a new possibility of becoming parents. However, before beginning the process, it is important to understand that surrogacy in India is governed by a specific legal framework.

The law does not permit every form of surrogacy or allow every individual to opt for it. It lays down conditions relating to medical necessity, the eligibility of intending parents, the surrogate mother's consent and fitness, mandatory certificates, insurance and the legal status of the child. The Surrogacy (Regulation) Act, 2021 is the principal legislation governing this process. It works alongside the Assisted Reproductive Technology (Regulation) Act, 2021, which regulates the clinics and ART services involved.

Understanding these requirements before approaching a clinic can help intending parents avoid unnecessary delays, incomplete applications and legal complications. This guide explains the law in simple terms, including who may opt for surrogacy, what documents are required and how the process generally works.

1. What is the law governing surrogacy in India?

Surrogacy in India is primarily regulated by two central laws:

The Surrogacy (Regulation) Act, 2021

This Act regulates the practice of surrogacy, lays down eligibility requirements for intending parents and surrogate mothers, and prohibits commercial surrogacy and exploitation.

The Assisted Reproductive Technology (Regulation) Act, 2021

Since surrogacy involves assisted reproductive procedures, the ART Act also becomes relevant. It regulates ART clinics, banks, medical procedures and the handling of gametes. Both laws must be considered together. Compliance with the medical requirements alone does not automatically establish eligibility under the Surrogacy Act. The Surrogacy (Regulation) Act came into force on 25 January 2022. Its provisions and the applicable rules should be read together when assessing an individual case.

2. What types of surrogacy are permitted in India?

The law permits altruistic gestational surrogacy, subject to the prescribed conditions. Understanding these terms is important. Altruistic surrogacy means that the surrogate mother cannot receive payment, reward, benefit or remuneration beyond the medical expenses and prescribed insurance coverage permitted under the law.

Gestational surrogacy means that an embryo is created through assisted reproductive technology and transferred into the surrogate mother's uterus. The surrogate mother does not provide her own egg for the procedure. Commercial surrogacy, including arrangements involving payment or benefits beyond what the law permits, is prohibited. The purpose of these restrictions is to prevent the exploitation of women and ensure that surrogacy is undertaken within a regulated medical and legal framework.

3. Who is eligible to opt for surrogacy in India?

Eligibility is one of the first issues intending parents should examine. The law prescribes specific requirements concerning marital status, age, children and medical necessity.

Eligibility for an intending couple

An intending couple must generally satisfy the following conditions:

The law provides an exception to the existing-child restriction where the couple has a child who is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness without a permanent cure, subject to the required approval and medical certification. The medical need for surrogacy must be established through the prescribed process. A personal preference or convenience, by itself, is not sufficient.

Eligibility for a single woman

The Act also recognises an intending woman who is a widow or divorcee between the ages of 35 and 45 years, subject to the applicable statutory and procedural requirements. Under the applicable rules, an intending woman in this category must use her own eggs and donor sperm. Eligibility should always be assessed against the current law and the documents applicable to the individual case.

4. Who cannot opt for surrogacy under the current legal framework?

The Surrogacy Act does not create an unrestricted right to access surrogacy. The statutory framework does not generally extend eligibility to:

• Unmarried single women who do not fall within the recognised category of intending woman.
• Single men.
• Widowers and divorced men.
• Couples in live-in relationships.
• Same-sex couples.
• Foreign nationals.

The existing-child restriction also applies, subject to the statutory exception mentioned above. Some aspects of the eligibility framework have been questioned in legal proceedings. However, a pending challenge should not be treated as a change in the law. Anyone whose circumstances fall outside the stated eligibility categories should obtain specific legal advice before making medical or financial commitments.

5. Who can become a surrogate mother?

The law sets out independent eligibility conditions for a woman who wishes to act as a surrogate mother.

Broadly, she must:

• Be an ever-married woman with a child of her own.
• Be between 25 and 35 years of age on the day of implantation.
• Be willing to act as a surrogate mother.
• Not have acted as a surrogate mother previously.
• Meet the prescribed medical and psychological fitness requirements.
• Not provide her own egg or oocyte for the procedure.

The Rules also prescribe limits on the number of attempts permitted. The intending parents must approach the appropriate authority with a willing woman who agrees to act as a surrogate mother. The law does not permit the arrangement to be treated as a commercial transaction. Her consent and well-being are central to the process. She must understand the medical procedure, the legal conditions and the rights available to her before proceeding.

6. What certificates and documents are required?

Documentation is a critical part of the surrogacy process. The law requires specific certificates before a surrogacy procedure can begin. In general, three separate eligibility-related requirements need attention.

A. Certificate of Essentiality

This certificate is issued by the appropriate authority after the prescribed conditions are satisfied.

The requirements include:

1. Medical indication certificate: The District Medical Board must certify the medical condition necessitating gestational surrogacy.
2. Parentage and custody order: An order concerning the parentage and custody of the child to be born through surrogacy must be obtained from a Magistrate of the first class or above, on the required joint application.
3. Insurance coverage: Insurance must be obtained in favour of the surrogate mother for the prescribed period of 36 months, covering postpartum delivery complications.

B. Eligibility Certificate for Intending Parents

This certificate establishes that the intending couple or intending woman meets the applicable statutory conditions, including age, marital status and the requirements concerning an existing child.

C. Eligibility Certificate for the Surrogate Mother

The surrogate mother must independently satisfy the prescribed conditions relating to age, marital status, having a child of her own, medical and psychological fitness, and previous surrogacy history. The exact application forms, supporting documents and issuing authority should be checked with the appropriate authority in the relevant state.

Practical point: Do not assume that a clinic's medical approval is equivalent to statutory approval. The certificates and orders required under the Act must be obtained through the prescribed legal process.

7. Can donor eggs or donor sperm be used in surrogacy?

The use of donor gametes has been an important area of change in India's surrogacy framework. The 2023 amendment introduced restrictions on the use of donor gametes by intending couples. Following legal challenges, the Surrogacy (Regulation) Amendment Rules, 2024 provided a limited relaxation. Under the amended position, an intending couple may use a donor egg or donor sperm where the District Medical Board certifies that either the husband or wife has a medical condition requiring the use of a donor gamete. However, at least one gamete must come from the intending couple.

For example, where the wife has a medical condition that prevents the use of her own eggs, the couple may be permitted to use a donor egg while using the husband's sperm, provided the prescribed requirements are satisfied. Similarly, where the husband has a medical condition requiring donor sperm, a donor sperm arrangement may be considered while using the wife's egg, subject to the applicable certification. The rules do not generally permit an intending couple to use donor eggs and donor sperm together for surrogacy. For a widow or divorcee applying as an intending woman, the applicable framework requires the use of her own eggs and donor sperm.

Donor gametes must also comply with the requirements of the ART Act and the applicable rules. They must be sourced through a registered ART bank. Because donor-gamete eligibility depends on the medical circumstances and the prescribed certification, the proposed arrangement should be reviewed before treatment begins.

8. Why is the surrogacy agreement important?

A surrogacy arrangement involves medical procedures, financial responsibilities, consent and the legal rights of multiple individuals. It should not be treated as an informal understanding between the parties. The Rules prescribe the relevant consent and agreement documentation, including Form 2.

The arrangement should clearly record matters such as:

• The medical procedures to which the surrogate mother has consented.
• The responsibilities of the intending parents regarding permitted medical expenses.
• The insurance coverage required under the law.
• The surrogate mother's right to withdraw before embryo implantation, in accordance with the applicable framework.
• The process for obtaining the parentage and custody order.
• The responsibilities of the intending parents towards the child.

The agreement must not contain any arrangement for prohibited payment, reward or benefit. A document signed without understanding the statutory restrictions may create serious complications. The parties should therefore ensure that the prescribed forms and supporting documents are properly completed and legally reviewed.

9. What are the legal rights of a child born through surrogacy?

The law gives specific recognition and protection to a child born through a surrogacy procedure. Under Section 8 of the Surrogacy (Regulation) Act, 2021, a child born through surrogacy is deemed to be the biological child of the intending couple or intending woman, as applicable, and is entitled to the rights and privileges available to a natural child. The legal framework also places an important responsibility on intending parents.

They cannot abandon or disown the child because of a birth defect, medical condition, the child's sex, or the birth of more than one child. The child cannot be treated as a subject of a commercial arrangement. Sex selection is also prohibited. The parentage and custody order obtained before the procedure forms an important part of the legal documentation for establishing parentage and completing the relevant birth-registration formalities. These provisions are intended to protect the child and provide legal certainty to the family.

10. What happens if someone violates the Surrogacy Act?

The Act contains strict penalties for prohibited activities. Commercial surrogacy, exploitation of a surrogate mother, abandonment of a surrogate child, prohibited advertising, and other specified violations can attract criminal consequences. Depending on the nature of the offence, penalties may include imprisonment and monetary fines.

For example:

• Section 38 provides penalties for specified offences, including undertaking or promoting commercial surrogacy and exploiting a surrogate mother.
• Section 39 deals with contraventions by medical professionals and clinic owners.
• Section 40 provides penalties for intending couples or intending women seeking commercial surrogacy.
• Section 41 addresses other contraventions of the Act and Rules.

The precise punishment depends on the provision and the conduct involved. The Act also treats specified offences as cognizable and non-bailable. This is why intending parents, clinics and medical professionals should not rely on informal arrangements or promises that appear to offer a shortcut around the statutory process.

11. What should NRI, OCI and foreign couples know?

Nationality and immigration status can affect eligibility. The Surrogacy Act does not permit foreign nationals to commission surrogacy in India. NRI couples who are Indian citizens may be considered under the same statutory eligibility framework applicable to other Indian couples, subject to the prescribed requirements. The position concerning Overseas Citizen of India (OCI) cardholders and persons of Indian origin requires particular care.

The statutory provisions, applicable government directions and administrative practice must be considered together. An OCI card should not automatically be treated as equivalent to Indian citizenship for the purpose of surrogacy eligibility. Anyone living outside India or holding a foreign or OCI status should obtain specific legal advice before beginning the process or making arrangements with a clinic.

12. Important Supreme Court ruling on age restrictions

A significant development came from the Supreme Court in its judgment dated 9 October 2025 in Vijaya Kumari S. & Anr. v. Union of India, along with connected proceedings, including the application involving Arun Muthuvel. The Court considered whether the age restrictions introduced by the Surrogacy (Regulation) Act, 2021 could retrospectively prevent certain intending couples from continuing a surrogacy process that they had already begun before the Act came into force.

The Court held that the age restrictions could not be applied retrospectively to the couples before it who had commenced the process before 25 January 2022 by completing the relevant embryo creation and freezing stage. The judgment is important because it recognises that the legal position must account for the stage at which a surrogacy process had begun before the new legislation came into force.

However, this decision should not be misunderstood as removing the statutory age limits for all intending couples. The Court's ruling was confined to the circumstances before it and the question of retrospective application. Couples considering surrogacy today must still satisfy the applicable eligibility requirements. Where a couple believes that its circumstances are covered by the judgment, the relevant medical records, embryo-freezing documents and procedural history should be examined carefully before approaching the appropriate authority.

13. How does the surrogacy process work in India?

Although the exact procedure may depend on the facts and the applicable rules, the broad legal journey generally involves the following stages:

Step 1: Medical consultation

The intending parents consult a registered ART or surrogacy clinic to understand the medical position and whether gestational surrogacy is necessary.

Step 2: Medical certification

The District Medical Board examines the case and issues the required medical indication certificate, along with any additional certification needed for donor gametes.

Step 3: Identification of an eligible surrogate mother

The intending parents approach a willing woman who satisfies the statutory conditions. Her medical and psychological fitness must be assessed.

Step 4: Obtain the required recommendation, where applicable

A certificate of recommendation from the Board may be required for specified categories, including intending women and couples of Indian origin.

Step 5: Obtain the parentage and custody order

The intending parents and surrogate mother must complete the prescribed process for obtaining the Magistrate's order concerning parentage and custody.

Step 6: Arrange insurance coverage

The required insurance cover for the surrogate mother must be obtained for the prescribed 36-month period.

Step 7: Apply for the statutory certificates

The intending parents and surrogate mother must obtain the relevant certificates from the appropriate authority.

Step 8: Complete consent and agreement formalities

The prescribed consent and agreement documentation must be completed and signed in accordance with the Rules.

Step 9: Proceed with the medical procedure

The embryo transfer can proceed at the registered clinic after the necessary statutory conditions have been fulfilled.

Step 10: Complete birth-registration formalities

Following the birth, the relevant parentage and custody documentation is used for the applicable birth-registration process.

The sequence and documents should be confirmed with the appropriate authority and the registered clinic before any procedure is undertaken.

14. What should intending parents do before starting surrogacy?

The legal process can feel complicated, particularly when medical decisions and statutory requirements need to be managed at the same time. A few practical steps can make the process more organised:

Understand your eligibility first. Check age, marital status, nationality and existing-child requirements before making a financial commitment.

Keep medical records organised. Medical reports, fertility-treatment history and relevant certificates may be required to establish the medical indication.

Verify the clinic's registration. Ensure that the clinic and the ART facilities involved are registered under the applicable law.

Understand the donor-gamete rules. If donor eggs or sperm may be required, obtain clarity on the medical certification and statutory conditions before proceeding.

Do not enter into informal financial arrangements. The law permits only the expenses and insurance arrangements recognised by the statutory framework.

Get the documents reviewed. Certificates, consent forms, insurance documents and the surrogacy agreement should be checked for compliance before the procedure begins. A little legal preparation at the beginning can help prevent avoidable complications later.

Conclusion

Surrogacy in India is a carefully regulated process. The law seeks to balance the reproductive interests of intending parents with the dignity, consent and protection of surrogate mothers and the rights of children born through the procedure. For intending parents, understanding eligibility is only the first step. Medical certification, statutory approvals, insurance, consent documents and parentage orders are all important parts of the legal journey. The Supreme Court's October 2025 decision also shows why the timing and stage of a surrogacy procedure can matter when applying the law. Before beginning treatment or entering into an arrangement, it is advisable to understand the current legal requirements and have the relevant documents reviewed by a professional familiar with surrogacy and assisted reproductive technology law.

Need clarity on the legal requirements for surrogacy in India?

Lex Curiam LLP advises on legal and regulatory issues relating to surrogacy, assisted reproductive technology and healthcare compliance. Understanding the applicable legal framework at the outset can help intending parents and institutions make informed decisions. Visit: https://www.lexcuriam.com/

Frequently Asked Questions

1. Is surrogacy legal in India in 2026?

Yes. Surrogacy is legal in India when it is undertaken in accordance with the Surrogacy (Regulation) Act, 2021 and the applicable Rules. Only altruistic gestational surrogacy is permitted.

2. Can an unmarried woman opt for surrogacy in India?

The Act recognises an intending woman who is a widow or divorcee between 35 and 45 years of age, subject to the statutory requirements. It does not generally extend eligibility to all unmarried women.

3. Can a surrogate mother use her own egg?

No. The law does not permit a surrogate mother to provide her own gametes for the surrogacy procedure.

4. Can intending parents use donor eggs or donor sperm?

A limited arrangement is permitted under the 2024 amendment where a medical condition is certified by the District Medical Board and at least one gamete comes from the intending couple. The prescribed conditions must be met.

5. How long does the surrogacy process take in India?

There is no single fixed timeline for every case. The time required depends on medical assessments, eligibility certification, the availability of the required documents, insurance and approvals from the appropriate authorities.

6. Can foreign nationals opt for surrogacy in India?

Foreign nationals are not eligible to commission surrogacy in India under the current framework. NRI and OCI cases require separate consideration based on citizenship and applicable government directions.

7. What happens if the child is born with a medical condition?

The intending parents cannot abandon or disown a child born through surrogacy because of a birth defect or medical condition. The Act provides legal protection to the child.