The practice of surrogacy is still surrounded by stigma and disinformation, and one of the primary reasons for this is the long-standing absence of legislative frameworks. In literal terms, surrogacy means a formal legal agreement whereby a woman becomes pregnant and gives birth to another couple’s kid to give the child to them after birth and renounce all parental rights.

Is surrogacy legal in India?

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Yes and no both. The legal landscape around surrogacy in India has been complicated and dynamic, with numerous legislative amendments intended to regulate the practice. Significant progress was made in January 2022 with the passing of the Surrogacy (Regulation) Bill, 2019.

India made a significant move in 2015 when it outlawed commercial surrogacy for foreigners. This action was motivated by concerns about the commercialization of the surrogacy procedure and the possible exploitation of surrogates.

Some highlighted points of the bill states that:

The ban restricted surrogacy services to Indian couples, and even for them, it mandated that surrogacy be altruistic, meaning that the surrogate could not receive financial compensation beyond medical expenses and insurance.Any type of surrogacy that entails a business transaction would be considered illegal. In this case, intended couples and surrogates who meet specific requirements are eligible parties.The only married Indian couples who can choose to become parents through surrogacy are those between the ages of 23 and 50 who do not currently have a living child or have a special child (mentally retarded). In addition, they will need to get an eligibility certificate from the District Medical Board stating that they are not biologically capable of becoming pregnant.In parallel, the only married women who qualify to be surrogates are those who are between the ages of 25 and 35, are close relatives of the intended couple, and have a child of their own. They will also need to get a physical fitness certificate from the District Medical Board.The Act further specifies that the surrogate cannot get any financial compensation other than a 36-month insurance policy and payment for any medical costs. Any infraction of this act will result in a fine of Rs 10 Lakhs and a maximum sentence of 10 years in prison. Furthermore, this Act prohibits the storage, sale, or import of human embryos or gametes for surrogacy, and it mandates registration for all surrogacy clinics.
Altruistic surrogacy, as envisioned by the bill, aimed to ensure that surrogacy arrangements were driven by genuine altruistic motives rather than financial gain. This was seen as a means to protect the interests of both the intended parents and the surrogate mothers, creating a more ethical framework for surrogacy.

These regulatory measures had well-intentioned goals, but there were many real-world repercussions and difficulties. In the lack of explicit restrictions, concerns surfaced over the possibility of exploitation and enforceability of altruistic surrogacy. Concerns were also expressed on how these rules would affect India’s flourishing surrogacy-related medical tourism sector.

It is important to remember that regulations can change, and since the last update, the legal environment in India around surrogacy may have changed. With the 2015 ban on commercial surrogacy for foreigners and the ensuing Surrogacy (Regulation) Bill, of 2019, the surrogacy laws in India have experienced substantial changes. All of these changes were made to resolve ethical issues and strengthen surrogacy regulations. However, due to the field’s continual advances and practical application, it is necessary to regularly check for the most recent legal changes and professional assistance.

Eligibility for surrogacy

Eligibility for surrogacy can vary based on the legal regulations of the country or region. In India, for example, the Surrogacy (Regulation) Bill, of 2019, proposed allowing altruistic surrogacy for Indian couples who have been married for at least five years and are unable to conceive a child. Additionally, they should have a proven medical condition necessitating surrogacy.

It’s essential to note that laws and eligibility criteria can change, and they differ from one jurisdiction to another. Individuals or couples considering surrogacy should consult the latest legal information specific to their location and seek guidance from medical and legal professionals to understand the eligibility criteria and requirements applicable to them.

When should a couple go for surrogacy?

The decision to pursue surrogacy is a deeply personal one and is often influenced by various factors, including medical, emotional, and financial considerations. Here are some common scenarios in which individuals or couples might consider surrogacy:

Medical Issues:

Infertility: When individuals or couples face infertility issues and other assisted reproductive technologies (ART) have not been successful, surrogacy may be considered.Medical Conditions: If a woman has a medical condition that makes pregnancy unsafe or impossible, surrogacy can provide an alternative to having a biological child.
Repeated Pregnancy Loss:

Couples who have experienced recurrent pregnancy loss or multiple failed IVF attempts may turn to surrogacy to increase the chances of a successful pregnancy.
Same-sex couples and live-in couples:

A single female may choose surrogacy as a way to have a biological child. In this case, partners are not included in the surrogacy process.
Uterine Issues:

Women with uterine problems, such as congenital absence of the uterus or abnormalities that prevent a healthy pregnancy, may opt for surrogacy.
Medical Risk to the Mother:

If carrying a pregnancy poses a significant medical risk to the intended mother’s health, surrogacy may be recommended.
Unsuccessful Previous Attempts:

After several unsuccessful attempts at conceiving through other methods, individuals or couples may turn to surrogacy as a last resort.
Single females or couples thinking about surrogacy must consult reproductive endocrinologists, fertility specialists, and lawyers. They can offer the latest details on the psychological, legal, and medical facts of surrogacy, assisting people in making decisions that are well-informed for their particular situation.

(Dr. Shobha Gupta is the Medical Director and IVF Specialist at Mother’s Lap IVF Centre, New Delhi and Vrindavan)