India’s journey toward regulating surrogacy is one of the more telling stories about how law intersects with gender, reproductive rights, and socioeconomic inequality. For nearly two decades, the country operated in a legal grey zone – a booming global hub for commercial surrogacy with minimal formal protections for the women at the center of it all. The Surrogacy (Regulation) Act, 2021 was meant to fix that. But while it closed the door on exploitation in one sense, critics argue it opened new ones.
Table of Contents
- The early years: ICMR guidelines and an unregulated boom
- The Law Commission and the push for reform
- Key changes under the Surrogacy (Regulation) Act, 2021
- The ban on commercial surrogacy
- Surrogate eligibility criteria
- Eligibility criteria for intended parents
- Restrictions on foreign participation
- Criticisms and exclusions under the new law
- Exclusion of LGBTQ+ individuals and single parents
- The “altruistic surrogacy” problem and its impact on poor women
- Constitutional concerns and reproductive autonomy
- What the law leaves unresolved
- Where the law stands today
The early years: ICMR guidelines and an unregulated boom
Before any formal legislation existed, surrogacy in India operated largely on the strength of advisory guidelines. Surrogacy guidelines did not exist before 2002, when the Indian Council of Medical Research (ICMR) released the preliminary national standards for the accreditation, oversight, and licensing of ART institutions in India. In 2005, these guidelines were approved by the Ministry of Health and Family Welfare, Government of India.
These guidelines shaped the early structure of surrogacy in the country, but they had a fundamental limitation. Commercial arrangements were not prohibited, and these guidelines were ineffective as they did not carry the weight of legislation. The ICMR guidelines were recommendatory, not enforceable – clinics could follow or ignore them without legal consequence.
What the 2005 guidelines did establish was a basic framework for how surrogacy should function. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.
In the absence of binding law, the industry expanded rapidly. From the 2000s through the early 2010s, India became the major global destination for transnational commercial surrogacy, attracting heterosexual couples, single parents, and same-sex couples from abroad. At the same time, a series of very public cases including the deaths of egg donors and surrogates, disputes with visas and citizenship, and child abandonment fueled concerns about exploitation, inadequate governmental oversight, and legal issues.
The Law Commission and the push for reform
As public concern mounted, formal pressure for legislative action grew. In 2009, the Law Commission of India recommended prohibiting commercial surrogacy, allowing altruistic surrogacy, and enacting a law to regulate matters related to surrogacy. That report, combined with media coverage of surrogate exploitation and cross-border legal disputes, laid the groundwork for what would become years of failed bills before a law finally passed.
Draft Assisted Reproductive Technology (Regulation) Bills were prepared in 2008, 2010 and 2014, and ICMR guidelines were issued in 2005, but there was no comprehensive national statute for surrogacy that was enacted. From July 2012 onwards, the policy direction began moving towards restriction. Visa rules for the international biological parents were tightened, and in November 2015 medical visas for surrogacy were suspended.
A series of bills followed – in 2016, 2019, and 2020 – each one lapsing or stalling in Parliament. The bill received the President’s assent on 25th December 2021 and it officially came into effect on 25th January 2022 as the Surrogacy (Regulation) Act, 2021.
Key changes under the Surrogacy (Regulation) Act, 2021
The 2021 Act represented a definitive break from what came before. Where the ICMR guidelines allowed commercial surrogacy to exist with some guardrails, the new law eliminated it entirely.
The ban on commercial surrogacy
The Act strictly bans commercial surrogacy. Any form of monetary compensation, reward, or inducement to the surrogate mother – other than approved medical expenses and insurance – is illegal. Only altruistic surrogacy is allowed, where the surrogate is reimbursed only for medical expenses, insurance coverage, food, and travel related to pregnancy.
This shift was framed as a protective measure. The pre-2021 landscape had generated documented cases of women from economically vulnerable backgrounds being recruited into surrogacy with inadequate legal protection, poor health follow-up, and no clear recourse in disputes. The Act intended to sever the commercial incentive that critics believed drove exploitation.
Surrogate eligibility criteria
The law sets out detailed conditions that a woman must meet before she can serve as a surrogate. The surrogate mother must be known to the intending couple. An ever-married, widowed, or divorced woman with at least one biological child can act as a surrogate. The surrogate mother must be between 25 to 35 years of age on the day of embryo implantation.
Additionally, the surrogate mother should refrain from providing her own gametes and from acting as a surrogate mother more than once. These restrictions are designed to prevent repeat surrogacy from becoming a form of informal commercial arrangement, and to ensure the surrogate has prior experience of pregnancy and birth.
Eligibility criteria for intended parents
The Act is equally prescriptive about who can commission a surrogacy. Eligibility criteria require that intended parents must be an Indian couple who have been married for at least 5 years. Age limits are set at 26 to 55 years for the male partner and 23 to 50 years for the female partner. They must provide a certificate of infertility or medical indication from a registered medical practitioner.
The intending couple should not have any living biological child, adopted child, or a child born through surrogacy. The intending couple must obtain certificates of medical indication, essentiality, and eligibility from a registered medical practitioner. These documents prove that they cannot conceive or carry a pregnancy on their own.
Restrictions on foreign participation
The new law effectively closed India to international surrogacy tourism that had characterized the earlier era. Surrogacy is only for Indian couples and NRIs, OCI/PIO cardholders with medical indication and with a minimum of five years of marriage. Foreign nationals without Indian origin connections are categorically excluded.
The Act also established an oversight infrastructure to enforce these rules. It establishes regulatory boards for oversight and mandates essential certificates, imposing severe penalties for violations. It also safeguards the legal rights of children born via surrogacy, making them the legitimate offspring of the intending parents.
Criticisms and exclusions under the new law
The 2021 Act was passed with the stated goal of protecting women. The reality, according to a substantial body of legal and academic criticism, is that it protects a narrow category of women from one form of harm while creating new harms for many others.
Exclusion of LGBTQ+ individuals and single parents
Perhaps the most frequently cited criticism of the Act is its explicit restriction of surrogacy to heterosexual married couples. The Act highlights the gender discrimination that still persists and forbids same-sex and non-binary couples from sharing in the joy of parenthood by only allowing a man and a woman who are legally married under Indian law to avail surrogacy operations.
This exclusion is particularly pointed given India’s own legal trajectory. The laws are framed in a heteronormative and exclusionary way. ART is made available only for infertile heterosexual married couples or single women who are either widowed or divorced, omitting the LGBTQI+ community and unmarried partners. This goes against international standards and the latest Supreme Court of India decisions, including Navtej Singh Johar v. Union of India, a landmark case for the LGBTQI+ community that decriminalized same-sex relations between consenting adults.
The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. Their categorical exclusion is not a minor gap – it affects a significant share of people who might otherwise seek surrogacy as a path to parenthood.
The law’s treatment of single individuals is similarly inconsistent. The Act permits married couples and divorced or widowed women aged 35 to 45 years to utilize surrogacy for having children. However, it notably excludes single and unmarried women, as well as homosexual couples, defining “intending couple” strictly as a union between a cisgender man and woman. A single man has no legal pathway to surrogacy under the Act whatsoever.
The “altruistic surrogacy” problem and its impact on poor women
The Act’s reliance on altruistic surrogacy – where a surrogate is compensated only for medical and insurance costs – is presented as ethical. Critics argue it is anything but, particularly for women from economically disadvantaged backgrounds.
The banning of commercial surrogacy moves from a rights-based approach to a needs-based approach, thus removing women’s autonomy to make their own reproductive decisions and right to parenthood. The Act reinforces traditional patriarchal norms of society that attributes no economic value to women’s work, directly affecting the fundamental rights of women to reproduce under Article 21 of the constitution. The altruistic surrogacy model expects women to go through the physical and emotional pain and labor of giving birth to a child only out of compassion, which is far removed from the existing reality.
Before the 2021 Act, surrogacy – whatever its ethical complications – represented a source of income for many women who had limited options. Though the Act forbade commercial surrogacy due to its negative effects on surrogate mothers, it also eliminated the opportunity for underprivileged women to earn money by serving as surrogates.
Researchers studying the law’s practical effects have found that the model it depends on may simply be unworkable. In actuality, altruistic surrogacy is a myth because it would be difficult for intended couples to find a willing surrogate mother who will intend to give birth to a child at no cost. The peer-reviewed critique published in PMC argues that framing surrogacy purely through altruism ignores the economic dimensions of reproductive labor that have always existed.
There is also concern that the ban on commercial surrogacy does not eliminate the practice – it just pushes it underground. Some experts fear that the restrictions on commercial surrogacy may drive the practice underground, leading to unregulated and potentially unsafe surrogacy arrangements. Women who participate in informal, unregulated surrogacy arrangements outside the law’s framework would have even fewer protections than before.
Constitutional concerns and reproductive autonomy
Legal scholars have raised pointed questions about whether the Act’s exclusions hold up against India’s own constitutional guarantees. A woman’s reproductive choice is a fundamental right and is an indissoluble segment of her freedom and liberty as enshrined under Article 21 of the Indian Constitution. Using the social construct of marriage to determine eligibility for surrogacy and become a surrogate hinders reproductive autonomy and confines the beneficial provisions to a section of society.
This Act has been widely criticized as violating Article 21 of the constitution. Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, which includes the freedom to choose one’s path to parenthood. The Center for Reproductive Rights noted that by prohibiting compensatory surrogacy, the law perpetuates a paternalistic model that undermines women’s autonomy and reproductive labor.
The Act also draws criticism for treating disability in a way that many find discriminatory. The Act considers having children with physical and special needs as childless. It further encourages considering surrogacy if the couple has a child with a life-threatening disorder, a clause which directly violates the rights of children with disability, thus denying them treatment with dignity.
What the law leaves unresolved
Beyond its exclusions, the 2021 Act has gaps in how it handles foreseeable complications. The legislation forbids leaving a surrogate child abandoned, but it makes no provision of what to do if the intended parents decline to take custody because of unforeseen circumstances. Regulatory clarity exists for normal proceedings; edge cases remain largely unaddressed.
The International Bar Association has also documented how the Act’s restrictions on NRIs and foreign nationals have pushed many Indian-origin individuals to seek surrogacy in other countries, navigating complex and costly cross-border legal arrangements – an outcome that serves neither intended parents nor surrogate mothers well.
In September 2024, in a case brought by several intending couples, the Supreme Court of India pivoted towards compensation to the surrogate mother, suggesting an indirect method of payment via a designated authority rather than the intending couple – an unprecedented attempt at safeguarding the rights and interests of the surrogate mother. Whether this signals a broader judicial rethinking of the Act’s altruism model remains to be seen.
Where the law stands today
The Surrogacy (Regulation) Act, 2021 is significant legislation. It ended an era of near-total commercial surrogacy that had real and documented harms. It created a legal framework where none existed. It extended protections to surrogate mothers and gave children born through surrogacy clear legal status.
But the law’s architecture reflects a particular vision of Indian family life – heterosexual, married, and cisgender – that excludes a substantial portion of the population. It treats reproductive labor as something that should be performed for love alone, without acknowledging the economic realities that shape who becomes a surrogate and why. And it has introduced new vulnerabilities by potentially driving commercial arrangements underground rather than eliminating them.
The Act effectively excludes certain sections of society, such as LGBTQIA+ individuals, from opting for surrogacy as a last resort for biological parenthood. Additionally, the Act places numerous hurdles in the name of protecting women from the pitfalls of commercial surrogacy and the artificial reproduction industry, which could have unintended consequences. There is a need to amend the Act to make it a more comprehensive piece of legislation that supports an inclusive and egalitarian society.
The legal challenges currently before India’s Supreme Court suggest this conversation is far from over. The 2021 Act may be the most comprehensive surrogacy law India has ever had – but it is likely not the last word.
What do you think? Does banning commercial surrogacy genuinely protect economically vulnerable women, or does it remove their agency to make informed decisions about their own bodies and labor? And should a country’s surrogacy law be shaped by constitutional rights or prevailing social norms – and what happens when the two conflict?
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