Is Commercial Surrogacy Legal In India

Commercial surrogacy is illegal in India. Since 2015, the government banned paid surrogacy to prevent exploitation. Only altruistic surrogacy, where no payment beyond medical expenses is made, is allowed under strict rules. Enforcement is strict but challenges remain.

Understanding Commercial Surrogacy and Its Legal Status in India

Commercial surrogacy means a woman is paid to carry a child for someone else. India was once a popular destination for this practice due to lower costs and less regulation. However, concerns about exploitation led to legal changes.

The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy. It allows only altruistic surrogacy for Indian couples meeting specific criteria. This law aims to protect surrogate mothers and children from misuse.

• Commercial surrogacy involves payment beyond medical expenses to the surrogate mother, which is now banned in India under the 2021 Act.

• Altruistic surrogacy is allowed only for Indian married couples who have been married for at least five years and cannot conceive naturally.

• The surrogate must be a close relative of the intending couple and can only be a woman aged 25 to 35 years with at least one child of her own.

• Foreigners and single individuals are not allowed to commission surrogacy in India, restricting the practice to Indian couples only.

• Surrogacy clinics and agencies must be registered and follow strict guidelines to prevent exploitation and ensure ethical practices.

The law reflects India's effort to balance reproductive rights with ethical concerns. It also aims to end the commercial surrogacy tourism that was common before.

Rights and Restrictions Under the Surrogacy (Regulation) Act

The Act defines who can access surrogacy and under what conditions. It protects surrogate mothers and children by setting clear rules. This section explains the rights and restrictions that come with the legal age and eligibility.

Only certain couples qualify, and the surrogate mother has rights to medical care and protection. The child born has legal rights to citizenship and parentage.

• Only Indian heterosexual married couples between 23 and 50 years for women and 26 and 55 years for men can commission surrogacy under the law.

• The surrogate mother cannot be paid beyond medical expenses and insurance coverage for any health issues arising from the pregnancy.

• The intending couple must have a certificate of infertility issued by a government hospital or clinic to qualify for surrogacy.

• The child born through surrogacy has the same legal rights as a biological child, including inheritance and citizenship rights.

• The surrogate mother has the right to medical care during and after pregnancy and cannot be forced to abort or give up the child against her will.

These rights and restrictions ensure that surrogacy is conducted ethically and responsibly within India.

Enforcement and Practical Realities of Surrogacy Laws in India

Though the law is clear, enforcement faces challenges. Illegal commercial surrogacy still happens covertly. Authorities conduct inspections and impose penalties, but underground practices persist.

The government has set up boards to regulate and monitor surrogacy clinics. Public awareness is growing, but some surrogate mothers remain vulnerable.

• State and central authorities regularly inspect clinics to ensure compliance with the Surrogacy (Regulation) Act and shut down illegal operations.

• Violations of the law can lead to imprisonment of up to 10 years and fines up to 10 lakh rupees for individuals and clinics.

• Despite strict laws, some commercial surrogacy arrangements continue illegally, often in rural areas with less oversight.

• Many surrogate mothers come from economically weaker sections, making them vulnerable to exploitation despite legal protections.

• Awareness campaigns and NGO involvement help educate surrogate mothers and intending parents about legal rights and responsibilities.

Enforcement is improving but requires continuous effort to protect all parties involved.

Common Misunderstandings About Surrogacy Laws in India

Many people confuse altruistic and commercial surrogacy or believe foreigners can still access surrogacy services in India. This section clarifies common myths and explains the law clearly.

Understanding these misunderstandings helps avoid legal trouble and protects everyone’s rights.

• Some believe commercial surrogacy is still legal in India; however, it has been banned since 2015 and reinforced by the 2021 Act.

• Foreigners and single individuals cannot legally commission surrogacy in India; only Indian married couples qualify under the law.

• Altruistic surrogacy means no payment beyond medical costs; any additional payment is illegal and punishable.

• Surrogacy is not allowed for same-sex couples or unmarried individuals under current Indian law.

• Many think surrogate mothers have no rights, but the law protects their health, consent, and welfare throughout the process.

Clearing these misunderstandings helps you navigate surrogacy laws safely and legally.

Comparison with Surrogacy Laws in Other Countries

India’s surrogacy laws are stricter than many countries that allow commercial surrogacy. Some countries permit paid surrogacy, while others ban it completely. This section compares India’s approach with others.

Understanding these differences is important if you consider surrogacy internationally.

• Countries like the United States allow commercial surrogacy in some states, unlike India’s complete ban on paid surrogacy.

• In the United Kingdom, only altruistic surrogacy is legal, similar to India, but foreigners can access surrogacy services under certain conditions.

• Countries such as Thailand and Nepal banned commercial surrogacy after issues with exploitation and legal complications, similar to India’s approach.

• Some European countries prohibit all forms of surrogacy, while India allows altruistic surrogacy with strict eligibility rules.

• India’s law is unique in requiring the surrogate to be a close relative, which is not common in many other jurisdictions.

These comparisons show India’s focus on ethical surrogacy and protecting vulnerable parties.

Recent Legal Developments and Court Interpretations

The Surrogacy (Regulation) Act, 2021, is the latest major law on surrogacy in India. Courts have also interpreted aspects of the law to clarify rights and procedures. This section covers recent changes and important rulings.

These developments shape how surrogacy is practiced and regulated today.

• The 2021 Act replaced earlier guidelines and bans commercial surrogacy while regulating altruistic surrogacy strictly.

• Courts have ruled that children born through surrogacy have full legal rights, including citizenship and inheritance, regardless of the surrogate mother.

• Recent judgments emphasize the need for surrogate mothers’ consent and protection against coercion or exploitation.

• The government has set up national and state surrogacy boards to oversee and regulate surrogacy clinics and procedures.

• Legal debates continue about expanding surrogacy rights to single parents and LGBTQ+ couples, but no changes have been made yet.

These legal developments ensure surrogacy in India is regulated fairly and transparently.

Conclusion

Commercial surrogacy is illegal in India, with only altruistic surrogacy allowed under strict conditions. The law protects surrogate mothers and children but limits who can access surrogacy. Enforcement is improving, though illegal practices still exist.

Understanding these rules helps you navigate surrogacy safely and legally in India.

FAQs

Is it legal for foreigners to use surrogacy services in India?

No, foreigners are not allowed to commission surrogacy in India. The law restricts surrogacy to Indian married couples only, aiming to prevent surrogacy tourism and exploitation.

Can a surrogate mother receive payment beyond medical expenses?

No, the law prohibits any payment beyond medical expenses and insurance. Surrogacy in India must be altruistic, meaning the surrogate mother cannot be paid for carrying the child.

What happens if someone violates the surrogacy laws in India?

Violations can lead to imprisonment up to 10 years and fines up to 10 lakh rupees. Clinics and individuals involved in illegal commercial surrogacy face strict penalties.

Are single or same-sex individuals allowed to commission surrogacy in India?

No, current Indian law allows surrogacy only for heterosexual married couples. Single persons and same-sex couples are excluded under the Surrogacy (Regulation) Act.

Does the surrogate mother have legal rights over the child?

The surrogate mother must give informed consent and cannot claim parental rights after birth. The child legally belongs to the intending parents, but the surrogate’s health and welfare are protected.