Surrogacy Law In India: Navigating Complexities Amidst Legal Reforms

In the evolving terrain of reproductive rights and biotechnology, India has emerged as both a frontier and a flashpoint for global surrogacy arrangements. The nation's surrogacy landscape has been punctuated by legal grey zones, ethical dilemmas, and emotionally charged courtroom dramas that have challenged the contours of parenthood, nationality, and dignity. A 76-year-old woman giving birth through IVF, her eyes brimmed with tears, sagging teats, emaciated body frame and longing fulfilled, stands as a stark symbol of science outpacing the law. Another complex situation arose when a Japanese couple, having commissioned a child through surrogacy in India, separated before the child's birth. The commissioning father and his mother sought to claim the child, leading to legal ambiguities regarding the registration of the child's parentage, especially considering Japan's non-recognition of surrogacy. The legal confusion was compounded by the fact that Japan does not recognize surrogacy, raising the spectre of immigration difficulties for the child upon arrival—an infant whose legal parenthood was undecided in both the sending and receiving jurisdictions (Baby Manji Yamada (SC,2008)). Similarly, a German couple found themselves stranded in legal limbo when a child born through surrogacy in India was issued a birth certificate that recorded the biological egg donor and the surrogate as the legal parents—conforming to Indian documentation norms but diverging from the commissioning parents' expectations. Unable to obtain travel documents, the couple was effectively trapped, as their own country did not recognize the arrangement, and the Indian system had not yet evolved mechanisms for accommodating cross-border surrogacy norms. (Jan Blaz v Anand Municipality (Gujarat HC, 2009)).

These “testy situations,” have spotlighted the need for a consistent legal framework, even as the courts have been forced to improvise justice in the absence of legislative clarity. While India now boasts a robust regulatory regime through the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, the clarity promised by law is often muddied by real and reel life narratives that blur lines and defy statutory mandates. The confusion is worst confounded by high-profile examples from the tinsel world that dominate headlines and social media, distorting public understanding.

A young woman publicly experimenting with motherhood before marriage (Kadhalikka Neramillai, a Tamil film, 2025 release), a popular celebrity couple announcing the birth of twins through surrogacy within a year of marriage—later revealing a secret marriage seven years prior—and another well-known couple welcoming a third child through surrogacy despite already having two biological children, present cases that strain credulity under the current legal framework. A famously gay actor is reported to have a child through surrogacy arrangement. None of these instances would lawfully qualify under the existing surrogacy laws, which tightly restrict eligibility to altruistic surrogacy for married couples with proven infertility and no living biological children.

Even more troubling is a recent decision (Gurvinder Singh NCT Delhi (Delhi HC, 2024)) , where the court permitted the release of frozen semen of a deceased, unmarried son—who succumbed to cancer—to his elderly parents, aged beyond the legally permissible limits for commissioning surrogacy. Through reasoning that leaned on the supposed Indian cultural recognition of grandparents' love and their “fitness” to parent, the court sanctioned an arrangement that starkly contravened the letter and spirit of the law. The resulting legal fiction—where the commissioning mother would be deemed the biological mother, and the genetic father would be her deceased son—conjures a biologically and legally absurd construct. The psychological consequences for the child, born into this layered paradox of kinship, are likely to be profound and unsettling when the truth of his origin unfolds. This case, perhaps more than others, exposes the fragility of judicial discretion when unmoored from statutory clarity and ethical foresight.

HERE IS YOUR TURN TO KNOW THE LAW:

1. Eligibility Criteria:
   • Only Indian heterosexual married couples are permitted to engage in surrogacy.
   • The female partner must be between 23 to 50 years old, and the male partner between 26 to 55 years old.
   • The couple must not have any surviving biological, adopted, or surrogate children, with exceptions for children who are mentally or physically challenged or suffer from life-threatening disorders.
2. Prohibition for Foreign Nationals:
   • Foreign nationals, including Overseas Citizens of India (OCI) and Persons of Indian Origin (PIO), are prohibited from commissioning surrogacy in India.
3. Restrictions on Single Individuals:
   • Single men are not permitted to pursue surrogacy.
   • Single women are allowed only if they are widowed or divorced and between 35 to 45 years old.
4. Nature of Surrogacy:
   • Only altruistic surrogacy is permitted, meaning the surrogate mother cannot receive any monetary compensation beyond medical expenses and insurance coverage.
5. Surrogate Mother's Eligibility:
   • The surrogate must be a married woman with at least one child of her own and between 25 to 35 years old.
   • She can act as a surrogate only once in her lifetime and cannot use her own gametes for the surrogacy.
6. Legal Parentage:
   • The child born through surrogacy is legally deemed the biological child of the intending couple or woman, ensuring full parental rights and responsibilities.
7. Regulation of Clinics:
   • All surrogacy clinics must be registered with the appropriate authority and adhere to prescribed standards and protocols.

The Surrogacy (Regulation) Act, 2021, represents a significant step towards regulating surrogacy practices in India, aiming to prevent exploitation and ensure the welfare of all parties involved. However, the challenges highlighted by past cases underscore the importance of continuous legal scrutiny and public education to navigate the ethical and legal complexities of surrogacy. As India moves forward, balancing technological advancements with ethical considerations and legal safeguards remains paramount to uphold the rights and well-being of surrogate mothers, intending parents, and the children born through these arrangements.

Views Are Personal.

Author is a Former Judge of High Court of Punjab And Haryana.

The above is an excerpt taken from the book 'Medicine And Law' written by him and published by Thomson Reuters.

The book is Available in https://amzn.in/d/02RUSmj;

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