Surrogacy in India: Eligibility and Rules Under the 2021 Act

In India, only altruistic surrogacy is legal under the Surrogacy (Regulation) Act, 2021. Commercial surrogacy, where the surrogate is paid beyond her medical costs and insurance, is a crime. To be eligible, you must be either a legally married Indian couple (woman aged 23 to 50, man aged 26 to 55) or a single Indian widow or divorcee aged 35 to 45, with a genuine medical need for surrogacy and the required certificates from the appropriate authority.

If you are reading this while planning a family, take a breath. This is a hard, personal road, and the law has changed a great deal. A reader from Pune wrote to us after a clinic quoted a “package price” for a surrogate. That alone is a red flag: under the current law, no one can sell or buy surrogacy services. Knowing the rules protects you, your family, and the surrogate mother from clinics that still operate the old way.

The Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021) came into force to stop the unregulated, commercial surrogacy market that had grown for years. Two ideas run through the whole Act.

First, surrogacy must be altruistic. The Act defines altruistic surrogacy as surrogacy “in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother.” In plain terms: you may cover her medical care and insurance, and nothing more. You cannot pay her a fee for carrying the child.

Second, commercial surrogacy is prohibited. Section 4 of the Act bars surrogacy unless it is “only for altruistic surrogacy purposes” and “not for commercial purposes.” Anyone who undertakes or provides commercial surrogacy is “punishable with imprisonment for a term which may extend to ten years and with fine which may extend to ten lakh rupees.”

Only gestational surrogacy is allowed. The surrogate carries an embryo that is not genetically related to her. The Act is clear that “no woman shall act as a surrogate mother by providing her own gametes,” so the surrogate cannot use her own egg.

The law allows surrogacy for two categories of people only.

An intending couple. This means a legally married Indian man and woman who have “a medical indication necessitating gestational surrogacy.” On the day of certification, the female must be “between the age of 23 to 50 years” and the male “between 26 to 55 years.” The couple must not already have a surviving child, whether biological, adopted, or through earlier surrogacy. The one exception is a couple whose existing child is mentally or physically challenged, or suffers a life-threatening disorder or fatal illness with no permanent cure, as certified by a District Medical Board.

An intending woman. This is “an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.”

That is the full list. The Act does not extend eligibility to single men, unmarried couples, or live-in partners. This is a real limitation, and it has been challenged in court, but the statutory text as it stands is narrow. State only what applies to you, and confirm your exact situation with the appropriate authority before spending on any clinic.

The surrogate is protected by strict conditions. Under Section 4, she must hold an eligibility certificate confirming that she is:

• an ever-married woman who already has “a child of her own”;
• between the age of 25 to 35 years on the day of implantation;
• willing, with the intending couple or woman approaching the authority along with her; and
• medically and psychologically fit, certified by a registered medical practitioner.

A point that often surprises people: a woman may act “as a surrogate mother more than once” is exactly what the Act forbids. In the words of the statute, “no woman shall act as a surrogate mother more than once in her lifetime.” So a surrogate can do this only once, ever.

Note that the 2019 Bill once required the surrogate to be a “close relative” of the couple. That close-relative condition is not in the final 2021 Act text. Do not rely on older articles that still mention it.

Surrogacy is not a private arrangement you settle with a clinic. It runs through the appropriate authority and the courts. Here is the order of events.

1. Confirm the medical need. A District Medical Board issues a certificate of a medical indication in favour of the intending couple or intending woman, necessitating gestational surrogacy.
2. Get the certificate of essentiality. The appropriate authority issues this after checking three things: the District Medical Board's medical-indication certificate; a court order on the parentage and custody of the child (passed by a Magistrate of the first class or above, which becomes the birth affidavit after the child is born); and insurance cover for the surrogate “for a period of thirty-six months covering postpartum delivery complications.”
3. Get the eligibility certificate for the surrogate. The authority issues this once her age, prior childbirth, willingness, and fitness are confirmed.
4. Get the eligibility certificate for the intending couple or woman. A separate certificate confirming the age band and the no-surviving-child condition.
5. Use a registered clinic only. “No surrogacy clinic, unless registered under this Act, shall conduct” any surrogacy procedure. Ask to see the clinic's registration before anything begins.
6. Take written informed consent. The clinic must explain all side effects and obtain the surrogate's written informed consent in a language she understands. She may withdraw consent before implantation.

A surrogacy that skips these certificates is illegal, and the people who arranged it can face prosecution.

If a clinic claims to be registered, or an authority is sitting on your certificate application, the Right to Information Act, 2005 is a clean way to get answers in writing. Ask the State health department for the list of registered surrogacy and ART clinics, or ask the appropriate authority for the status of your application. A written RTI reply is far stronger than a verbal assurance.

You can draft a request fast with the AI RTI Drafter, and if a department ignores you, the First Appeal Builder helps you escalate. For the full method, see The RTI Playbook.

• Paying a “surrogate fee.” Any payment beyond medical expenses and insurance is commercial surrogacy, which is punishable.
• Trusting an unregistered clinic. Always verify registration under the Act first.
• Assuming old rules apply. The close-relative requirement and the commercial model are gone. Use only current, post-2021 guidance.
• Skipping the court order. The Magistrate's parentage and custody order is mandatory, not optional.

Yes, but only altruistic surrogacy through a registered clinic, for eligible people, with the required certificates. Commercial surrogacy remains prohibited under the Surrogacy (Regulation) Act, 2021.

The Act allows only a legally married Indian couple or a single Indian widow or divorcee aged 35 to 45. It does not provide for single men, unmarried couples, or live-in partners.

Nothing beyond her medical expenses and insurance cover. The Act bars any fee, reward, or monetary incentive. Mandatory insurance must cover a period of thirty-six months for postpartum complications.

No. The Act states that no woman shall act as a surrogate mother more than once in her lifetime. She must also be an ever-married woman with a child of her own, aged between 25 and 35.

No. Only gestational surrogacy is allowed, and the surrogate cannot provide her own gametes. The child is not genetically related to her.

Start by confirming, in writing, that you fall inside the eligibility bands and that any clinic you approach is registered. Get the District Medical Board certificate, the certificate of essentiality, the Magistrate's order, and both eligibility certificates before any procedure begins. If a clinic pushes you to skip a step or pay a fee, walk away, because that path is illegal and unsafe.

To verify a clinic's registration or check on a stalled certificate, file an RTI with your State health department. The RTI Wiki tools and The RTI Playbook will walk you through it.

Sources: Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021), Gazette of India, Sections 2 and 4; Ministry of Health and Family Welfare. This article is general information, not legal advice. Confirm your eligibility with the appropriate authority for your State.