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Who Can Opt for Surrogacy in India? Eligibility Explained (2026)

For individuals and couples who have been unable to conceive or carry a pregnancy due to medical reasons, surrogacy may offer an opportunity to build a family. However, in India, the decision to pursue surrogacy is not based on medical need alone. The law also sets specific eligibility conditions that intending parents must satisfy.

The Surrogacy (Regulation) Act, 2021 regulates who can opt for surrogacy in India, the circumstances in which it is permitted and the approvals required before the procedure begins. This means that not every couple or individual is legally eligible. Age, marital status, nationality, existing children and medical circumstances can all affect eligibility.

So, who can legally opt for surrogacy in India in 2026? Can a single woman apply? What happens if a couple already has a child? Are unmarried couples or foreign nationals eligible? This guide explains the eligibility requirements in straightforward language, along with important exceptions and legal considerations that intending parents should understand before starting the process.

1. What does Indian law say about surrogacy eligibility?

Surrogacy in India is primarily governed by the Surrogacy (Regulation) Act, 2021, along with the Surrogacy (Regulation) Rules, 2022 and subsequent amendments. The law permits only altruistic gestational surrogacy, subject to prescribed conditions. In simple terms, altruistic surrogacy does not allow the surrogate mother to receive payment or financial benefits beyond the medical expenses and insurance coverage permitted by law. Gestational surrogacy means that the surrogate mother carries an embryo created through assisted reproductive technology but does not provide her own egg.

The law recognises two broad categories of intending parents: An eligible married Indian couple. An eligible intending woman who is a widow or divorcee. Both categories must satisfy the relevant statutory conditions. Meeting the age requirement alone does not establish eligibility.

2. Eligibility criteria for a married couple

A married couple may opt for surrogacy in India if they meet the conditions prescribed under the Act.

The basic eligibility requirements are:

Age requirement for the wife
The wife must be between 23 and 50 years of age.

Age requirement for the husband
The husband must be between 26 and 55 years of age. The applicable age limits must be assessed at the relevant stage of certification under the law. Intending parents should not assume that being within the age range when they first consult a clinic automatically means that they will remain eligible throughout the process.

Is marriage compulsory?
Yes. The Act recognises an intending couple as a legally married Indian man and woman. A couple in a live-in relationship or an unmarried couple does not fall within this statutory category.

Practical point: Before making medical or financial commitments, couples should check their marital status, ages and other eligibility conditions against the statutory requirements.

3. Can a single woman opt for surrogacy in India?

Yes, but the law recognises a specific category of single woman. Under the Surrogacy (Regulation) Act, a woman may apply as an intending woman if she is a widow or a divorcee. She must also be between 35 and 45 years of age, subject to the other conditions prescribed by the law. The applicable rules require an intending woman in this category to use her own eggs and donor sperm. This distinction is important. The law does not extend the same eligibility to every unmarried woman simply because she wishes to become a parent. An intending woman must complete the prescribed medical and legal formalities and obtain the necessary approvals before proceeding.

4. Can an unmarried woman or single man opt for surrogacy?

The current statutory framework does not generally permit an unmarried woman outside the recognised widow or divorcee category, or a single man, to commission surrogacy in India. The eligibility framework is limited to the categories expressly recognised by the Act.

This means that:

• An unmarried woman who is not a widow or divorcee does not qualify under the recognised intending-woman category.

• A single man is not recognised as an eligible intending parent.

• A widower does not fall within the category of intending woman or intending couple.

• A divorced man cannot independently apply as an intending parent under the recognised categories.

The legal position should be assessed according to the law in force. Personal circumstances or an informal arrangement cannot replace the statutory eligibility requirements.

5. Can couples who already have a child opt for surrogacy?

This is one of the most important eligibility questions under Indian surrogacy law. As a general rule, an intending couple must not have a surviving child, whether biological, adopted or born through surrogacy. However, the Act provides a specific exception. A couple may be considered eligible if its existing child suffers from: A physical or mental disability; or A life-threatening disorder or fatal illness without a permanent cure. The exception is subject to the prescribed conditions and certification by the appropriate medical authority.

What about secondary infertility?

Secondary infertility refers to difficulty conceiving or carrying another pregnancy after having previously had a child. A couple experiencing secondary infertility does not automatically qualify for surrogacy merely because another pregnancy is medically difficult. The existing-child restriction continues to apply unless the statutory exception is satisfied. Legal challenges have been raised regarding the restriction on couples who already have a child. However, a pending challenge should not be treated as a general exemption from the law.

What should couples do?

Before proceeding, couples should obtain a clear assessment of whether their circumstances fall within the statutory exception. Relevant medical records and any required certification should be reviewed carefully.

6. Is a medical reason compulsory for surrogacy?

Yes. Surrogacy in India is not intended to be an option based only on personal preference or convenience. The law requires a medical indication necessitating gestational surrogacy. The medical circumstances must be assessed through the prescribed process, including certification by the District Medical Board. Depending on the individual case, medical circumstances may include: Absence or abnormality of the uterus. A medical condition that makes carrying a pregnancy unsafe. Other recognised conditions that prevent a woman from carrying a pregnancy.

These are illustrative examples, not an automatic list of qualifying conditions. The medical authority must assess the individual circumstances and determine whether the statutory requirements are met. A history of infertility treatment or unsuccessful IVF cycles does not, by itself, establish eligibility for surrogacy. The distinction matters because the law requires a medical basis for the procedure, not simply a desire to pursue another route to parenthood.

7. Can NRI, OCI or foreign couples opt for surrogacy in India?

Nationality is another important factor.

NRI couples

NRI couples who are Indian citizens may be considered under the same eligibility framework applicable to other Indian couples. They must still satisfy the requirements relating to age, marital status, medical necessity and existing children.

OCI cardholders (Couples of Indian Origin)

Yes. A couple of Indian origin may avail surrogacy services in India if both the husband and wife are OCI cardholders and they satisfy the eligibility conditions under the Surrogacy (Regulation) Act, 2021 and the Rules made under it.

There is an additional approval step for such couples. They must first obtain the required medical indication, essentiality and eligibility certificates from the Appropriate Authority of the State, District or Union Territory where they intend to undergo treatment. They must then apply to the Department of Health Research, Ministry of Health and Family Welfare, for a Certificate of Recommendation from the National Board, using the prescribed Form 1 under Rule 4 of the Surrogacy (Regulation) Rules, 2022. This recommendation must be obtained before starting surrogacy treatment in India. Where the couple has no residential address in India, the 13 May 2025 government instructions clarify that they may approach the Appropriate Authority in the State, District or Union Territory where they plan to avail the treatment. Anyone in this category should obtain specific legal advice before making arrangements with a clinic.

Foreign nationals
Foreign nationals are not eligible to commission surrogacy in India under the current legal framework. The fact that a person has access to an Indian medical facility or has previously received fertility treatment in India does not create an exception to the nationality requirements.

8. What if the intending parents are eligible but need donor eggs or sperm?

Eligibility for surrogacy and permission to use donor gametes are related but separate legal questions. The rules concerning donor eggs and sperm have changed over time. Following the 2024 amendment to the Surrogacy (Regulation) Rules, 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, subject to the prescribed requirements.

Similarly, donor sperm may be considered where the husband has a qualifying medical condition, while the wife's egg is used. The framework does not generally permit both gametes to come from donors for an intending couple. An intending woman who is a widow or divorcee must use her own eggs and donor sperm under the applicable rules. Donor gametes must also comply with the Assisted Reproductive Technology (Regulation) Act, 2021 and the applicable rules.

9. Important legal development: Supreme Court ruling on age restrictions

The Supreme Court's judgment dated 9 October 2025 in Vijaya Kumari S. & Anr. v. Union of India, along with connected proceedings, considered the application of the age restrictions under the Surrogacy (Regulation) Act to certain couples who had already begun the surrogacy process before the law came into force. The Court addressed whether the statutory age limits could retrospectively prevent those couples from proceeding where embryos had already been created and frozen before 25 January 2022.

The decision is important for couples whose surrogacy arrangements began before the Act became effective. However, it should not be interpreted as removing the age restrictions for all intending parents. The ruling concerned the circumstances before the Court and the question of retrospective application. Couples starting a new surrogacy process in 2026 must still consider the statutory age limits and applicable certification requirements. Where a couple believes that the judgment applies to its circumstances, the timing of embryo creation, freezing records and the history of the treatment should be examined by a legal professional.

10. What should you check before deciding to opt for surrogacy?

Before approaching a clinic or entering into any arrangement, intending parents should consider the following:

Check your eligibility. Confirm your age, marital status, nationality and existing-child status under the Act.
Obtain a medical assessment. Understand whether your medical circumstances satisfy the requirement for gestational surrogacy.
Verify the clinic's registration. The ART and surrogacy facilities involved must comply with the applicable registration requirements.
Understand donor-gamete restrictions. If donor eggs or sperm may be required, check whether the medical and legal conditions are satisfied.
Prepare the documents. Keep identity, marriage, medical and other supporting records organised.
Obtain legal guidance. Review the prescribed certificates, consent documents, insurance requirements and surrogacy agreement before proceeding.
Taking these steps at the beginning can help avoid delays and misunderstandings later in the process.

Conclusion
Surrogacy in India is available only to individuals and couples who fall within the eligibility categories recognised by law. For a married couple, age, marital status, medical necessity and the absence of a surviving child are important considerations. For a single woman, the law recognises widows and divorcees within a prescribed age range. The rules also contain specific provisions concerning existing children, donor gametes and the treatment of cases that began before the legislation came into force. For intending parents, the most sensible first step is to understand their legal position before beginning medical treatment or making financial commitments.

At Lex Curiam LLP, we recognise that surrogacy involves deeply personal decisions as well as important legal responsibilities. Understanding the applicable legal framework can help intending parents make informed decisions and approach the process with greater clarity. For information about surrogacy, assisted reproductive technology and related healthcare laws, visit: https://www.lexcuriam.com/