Abstract
The surrogacy legislation in India has been subjected to more changes over four years as compared to how it has been in the last 20 years. The Surrogacy (Regulation) Act, 2021, which replaced a more or less unregulated commercial industry with a strict, altruism-oriented model, was published on January 25, 2022.In 2024, an amendment brought a much-needed change that now allows the usage of donor gametes under the pretext of some medical conditions. This paper explains what such rules cover, to whom they apply, and their applicability in 2026.It further examines the legal battles that continue to play out in the Supreme Court of India, the practical realities that the law has spawned, and where this regulatory space will most likely be before 2030.
Introduction
The most popular in the world in the first half of the 2000s was commercial surrogacy in India. In cities like Anand, Gujarat and Mumbai, there were operating what the international media referred to as a baby industry. The packages of foreign couples cost between USD 10,000 and USD 28,000, which is about a fifth compared to the same package in the United States. A research that was supported by the United Nations estimated the business to be worth more than USD 400 million annually, and having over 3,000 fertility clinics throughout the entire country. It is estimated that more than 25,000 children are born to surrogates in India each year; at least half of which are ordered by foreign couples.
This is no longer so in the case of the surrogacy industry in India. The outcome of strengthening regulatory measures was the Surrogacy (Regulation) Act, 2021, which includes the prohibition of foreign nationals seeking surrogacy in 2015.Commercial surrogacy was eliminated by the Act. All that is left is a highly controlled system established around the altruistic type of surrogacy; a close female family member of the intending couple carries the baby with no fee other than the cost of healthcare and health insurance.
This law is not just a legal exercise. An estimate of 15 to 20 million infertile couples have been estimated in India alone, which means that about 25 percent of the global infertile couple population according to WHO statistics. Thus, surrogate parenthood will directly affect millions of people. The provisions on qualification, registration, and security identify the opportunities of such couples in the real and practical senses.
Surrogacy (Regulation) Act, 2021: Framework.
The Act defines surrogacy as a case where an intending couple conceives a child through a woman who conceives and delivers the child to the intending couple who take custody of the child upon birth. It only allows one type of arrangement: altruistic surrogacy. Any compensation to the surrogate other than medical costs and insurance (commercial surrogacy) is strongly prohibited.
Violation is severely punishable: Commercial Surrogacy: A person caught practicing or contributing to commercial surrogacy is punishable with a jail sentence of up to ten years imprisonment and a fine up to Rs 10 lakh. Child Abandonment: Abandoning a child born due to surrogacy, misuse of embryos and gametes, is subject to the same punishment. These are not sweet regulations; they are criminal laws. Another provision of the Act is that all surrogacy clinics must be registered.
A National Assisted Reproductive Technology and Surrogacy Board, chaired by the Union Minister of Health and Family Welfare, manages the policy. This board sets the minimum standards of infrastructure, laboratory equipment and staffing of professionals. The implementation is done at the state level by the State Assisted Reproductive Technology and Surrogacy Boards. This two-layered system tries to bring central control and local responsibility to an industry that has hitherto lacked formal control.
Who Can Use Surrogacy: Eligibility Rules.
The Act is very particular on how an intending parent is defined. Married Couples- The couple should be of Indian citizenship. The wife should be between the ages of 23 to 50, the husband should be between the ages of 26 to 55.The couple must have medical proof of infertility. They are not allowed to have any living child (biological, adopted, or through surrogacy).Exemption: In case a living child has a disability or a life threatening illness, the couple could still undergo surrogacy.
Single Women.
The legislation offers a slender route to single ladies. A widow or a divorcee aged between 35 and 45 years old can be allowed to be a surrogate mother though she must not have any living child. She will be required to donor her own ova and donor sperm. Excluded Groups. The law now excludes: Same sex couples, Single men, Women who have never been married, Live in couples, Foreigners.
OCIs were originally not permitted, but have since been permitted under certain circumstances. This discrimination has brought a lot of legal wrangles. Rules concerning the Surrogate.
Strict conditions:
A surrogate must meet several strict conditions: Must be close family of the intending couple, Must be between 25 and 35 years old, Must already have at least one child of her own, Must have a medical and psychological fitness certificate, One-time limit: A woman can be a surrogate only once in her life.
The close relative condition is very controversial. Practically, it has significantly decreased the number of available surrogates and has been a challenge to couples who do not have a willing or qualified family member.
The Certificate Requirements
The couple intending to undergo surrogacy must obtain two certificates before proceeding: Certificate of Essentiality: Testifies that the couple have a true medical necessity to undergo surrogacy and meet the criteria. Certificate of Eligibility: This is issued to ensure that both the intending parents and the surrogate meet all the legal requirements.
The surrogate should also possess a Certificate of Suitability which is given by a registered medical practitioner. All the documentation is scrutinized by a District Medical Board. It has become standard practice as of 2026 to make an order in court concerning the parentage before transfer of the embryo happens, and this process usually takes 60 to 90 days.
The targeted parents cover all the medical expenses of the surrogate including traveling, clothing, drugs, diagnostic tests and doctor visits. They also need to insure the surrogate under three year coverage of health insurance. Cash payments to the surrogate are forbidden in any case.
Amendment 2024: Authorisation to Use Donor Gametes.
One of the most practical in importance amendments to the surrogacy system in India is the Surrogacy (Regulation) Amendment Rules, 2024, announced by the Ministry of Health and Family Welfare in February 2024.The overturn was of a March 2023 rule that made the egg and sperm of a donor gametes illegal in all circumstances; only the egg and sperm of an intending couple had to be illegal. The former law had placed much stress on couples where one of the partners had a medical condition such that he or she could not produce viable gametes.
The most remarkable court case was of a woman having a genetic infection called Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, which causes her to be infertile. In October 2023, the Supreme Court in the Arun Muthuvel vs. Union of India case permitted her to use surrogacy with a donor egg, noting that the March 2023 amendment seemed to go against the intent of the Act. This was directly dealt with in the 2024 amendment. It has now enabled the use of a single donor gametophyte in surrogacy provided that: The District Medical Board certifies that one of the partners in the intended couple has a medical condition that requires a donor. This has a genetic requirement: at least one of the prospective parents must be of genetic relationship to the child. Even the couples where both parties need donor gametes are still not allowed to become surrogates under the current laws.
In 2024, the definition of infertility was further broadened, making it to include conditions that would make pregnancy life-threatening to the mother, but not necessarily the inability to conceive. This was an important shift which involved more couples being subject to the law.
Legal Problems and Scandals.
Post enactment, the Act has received a lot of criticism and many of its key sections are currently under trial in the Supreme Court of India.
A set of petitions challenging a variety of provisions in the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022 was heard by a bench of Justices B.V. Nagarathna and A.G. Masih, in May 2024.
Article 21: Petitions Due to the fact that the ban on commercial surrogacy violates the right to personal liberty and reproductive freedom. Reproductive Autonomy: Infertility specialist in Chennai, Dr. Arun Muthuvel has argued that the twin legislations create a discriminatory and exclusionary legal regime which denies agency and autonomy in making reproductive decisions. Single Women: Petitions challenged the unadmitted ness of single unmarried women and the reasonableness of the restriction of oocyte donation under the Assisted Reproductive Technology Act as irrational. Although in January 2024 the Supreme Court supported the commercial surrogacy ban, and in most cases reversed the arguments in Favor of LGBTQ+ inclusion, the overall set of challenges is under consideration.
Legal Inconsistencies
Critics have identified certain contradictions between laws. An example is using the term partner rather than husband as unmarried women are permitted to request an abortion. None the less, the Surrogacy Act is based on marital status that denies access.
Moreover, a petition challenging the exclusion of never-married single women was given a response by a Supreme Court bench which argued that women could have children through marriage or adoption. Legal scholars disapproved of this reaction and thought that the court ought not to determine family matters.
LGBTQ + Discrimination
The fact that same-sex marriages are not legal in India, as ruled in the Supriyo Chakraborty decision in 2023, supports this need to discriminate against the LGBTQ+ community. Because, under the Surrogacy Act, eligibility to be defined by legal marriage, same sex couples are, in effect, ineligible. Although the Indian Psychiatric Society has reported that there is no evidence that LGBTQ+ individuals do not make good parents, the process of legal reform is slow.
The Surrogate Shortage Issue
Among the most immediate practical implications of the “close relative” requirement is the lack of available surrogates. Commercial surrogates used to be frequently women engaged in it due to financial needs. The altruistic system eliminates the financial incentives and restricts the participants to the immediate female family members- a much smaller pool. By 2026: Only 15-20 percent of fertility clinics in India are completely in line with all legal surrogacy requirements. Several clinics which once did commercial work have been closed or converted to non-surrogacy ART services. The success rates of surrogacy are high (between 75 and 95 percent), yet the bottleneck is legal access to a willing and qualified surrogate, rather than to medical capability.
Financial Implications
Even within the framework of altruism, the targeted parents are incurring high costs. In India in 2026, the general cost of surrogacy arrangement is 10-15 lakhs. This growth is guided by: Legal requirements and records. Government approvals and court orders. Medical and health insurance. Smaller cities like Ahmedabad, Indore and Chandigarh are about 15 to 20 percent cheaper than the metro cities, but the process is rigorous.
The Future Outlook and Market Picture.
The domestic surrogacy market in India is projected to reach USD 613.50 million in 2024 despite the heavy regulation. Based on the data contained in IMARC Group, it is estimated to expand to USD 4.05 billion by 2033 with a compound annual growth rate (CAGR) of 21.47 percent. This has been driven by the domestic demand, as opposed to foreign interest. India’s total fertility rate has dropped from 4.60 in 1980 to 1.91 in 2021, and is projected to fall to 1.29 by 2050.More and more, urban couples are delaying parenthood in Favor of career choices, and rising rates of PCOS, obesity, and stress are all contributing to infertility even in younger demographics. The market is being propelled by technological advancements. Practices such as preimplantation genetic testing, AI-assisted embryo selection, and embryo freezing are becoming part of the standard practices at fertility clinics. In May 2024, a rule was announced that mandated all embryos in surrogacy cases to undergo genetic testing in order to ensure that cases of genetic disorders did not impact the child. In the Indian private sector, there are more than 5,000 ART centres providing their services in the country and 15 to 20 large corporate chains offering their services in the country.
International surrogacy may be implemented by the couples who are not able to pursue surrogacy in India due to eligibility requirements but it also is not without its issues. The previously popular destination Georgia has banned international commercial surrogacy. In such countries as Colombia, and in some states of the U.S., commercial arrangements are legal, but the average costs in the United States are much higher, and legal and immigration logistics of Indian nationals is complex.
Case Studies
Case Study 1: MRKH Syndrome Petition (Arun Muthuvel vs. Union of India, 2023)
The ban on the use of donor gametes led to the petition by a woman, who had been diagnosed with Mayer-Rokitansky-Kuster-Hauser Syndrome which is a congenital condition that causes her to be unable to conceive naturally. The Supreme Court allowed her to fertilize a donor egg to conceive a child under the Surrogacy Act, pointing out that the amendment appeared to be contradictory to the very spirit of the Surrogacy Act.
The case itself was the triggering event to the amendment of February 2024, which reinstated the use of donor gametes with medical certification. It is now referenced as the biggest individual case in the post-2022 history of the Indian surrogacy law.
Case Study 2: Surrogacy Access Petition by Unmarried Women.
An appeal to the Supreme Court presented the argument that the law that restricted surrogacy to widowed or divorced females and barred surrogacy to never-married single women was discriminatory to single women under Articles 14 and 21 of the Constitution. The remark of the bench that women could have a glimpse of the alternatives of marriage or adoption incurred the wrath of legal scholars and women rights activists. The case remains pending and falls within the bigger category of constitutional cases being discussed as a whole. It raises the dilemma between the old definition of family as in the law and new definitions of reproductive rights.
Case Study 3: India-Israel Surrogacy Case
In 2008, a child was conceived by a gay couple in Israel through Indian surrogacy prior to it becoming legal in India, where it was illegal to enforce surrogacy. The child was delivered and they went back to Israel. The case became a point of reference in the debate of reproductive law that was going to be tightened that was to come by referencing not only how surrogacy demands cut across borders but also in being the harbinger of the regulation tightening that was to come. It shows precisely what type of cross-border reproductive arrangement the Act of 2021 in India was meant to prevent.
Global Perspective
The transition to altruistic-only surrogacy puts India in a group with the UK, Australia, and a number of European countries. The most easily accessible type of commercial gestational surrogacy is found in the United States, where there are clear and enforced legal frameworks on commercial gestational surrogacy. As of 2024, the market in the U.S. surrogacy is estimated to be USD 5.1 billion. The international surrogacy market in general increased to about USD 25.74 billion in 2024 and is estimated to increase even more in the coming decade. In 2024, gestational surrogacy, which is accomplished by using IVF and disconnects the genetic connection between the surrogate and the baby, took 63.4 percent of the global market share. One of the more notable trends seen in other liberal jurisdictions, and in India as well, is restrictive amendments of surrogacy laws.
The international commercial surrogacy in Georgia had been outlawed leaving one of the biggest possible options that Indian and other Asian nationals would have had were they not eligible under domestic regulations in India. It has similarities to Thailand and Cambodia whereby frameworks have been tightened over recent years. Other countries such as Kazakhstan and Cyprus are now more approachable, but the world is moving toward more restrictive policies as opposed to liberalization.
Conclusion:
What to look forward to by 2030.The Indian surrogacy law of 2026 is the fruit of a bona fide effort to prevent exploitation but has led to the creation of a mechanism of access control that cuts across a wide spectrum of individuals who have valid reasons to enter into surrogacy. The amendment on donor gametes of 2024 was a corrective and practical amendment. Nevertheless, the exclusion of LGBTQ+ individuals, individuals who were never married, individuals who are single, and individuals who are not citizens, still remains, and the Supreme Court case that would allow altering some of it is progressing very slowly.
The legal environment will be influenced by a number of factors up to the year 2030: Constitutional Rulings: The Supreme Court will ultimately decide on the constitutional issues of commercial surrogacy and the rules of exclusionary eligibility. Even a partial reform would lead to a significant rise in access. Surrogate Scarcity: The fact that surrogates are supposed to be close relatives will not be stretched out since the practical implications of surrogate scarcity will be recorded and made more visible. The pressure on NRI and OCIs: The government will be under pressure to correct the plight of NRI and OCIs, particularly as the Indian diaspora in the West increasingly becomes vocal.
The driver of domestic demand is here to remain. The declining fertility rate and rising infertility of urban couple in India ensures that there will only be an increasing number of people who seek assisted reproduction. The market is expected to expand more than 21 percent per year till 2033.Whether this growth will be in a highly regulated altruistic system or in one that may be exploitative will be determined by the direction the law takes over the next three to five years. The lessons of experience are clear to any man who nowadays has to wade through such a system: Before beginning to work out any arrangement you must be sure you have your clinic registered on the National ART Registry. Consult a lawyer prior to initiating the documentation. Make sure that the surrogate is a genuinely willing and close family member with independent legal counsel. Arrange the legal compliance process that in 2026 will require a compulsory court order that could take 60 to 90 days. The rules are strict but there is legal way, which can be applied to the one who deserves to be represented.
Sources
- Surrogacy (Regulation) Act, 2021. Ministry of Law and Justice, Government of India. Gazette of India, December 25, 2021. https://legislative.gov.in/
- Surrogacy (Regulation) Amendment Rules, 2024. Ministry of Health and Family Welfare, Government of India. Notified February 21, 2024.
- Surrogacy (Regulation) Rules, 2022. Ministry of Health and Family Welfare, Government of India.
- Arun Muthuvel vs. Union of India. Supreme Court of India. October 2023.
- Vision IAS. ‘Surrogacy (Regulation) Amendment Rules, 2024.’ Current Affairs Monthly Magazine, April 2024. https://visionias.in
- Bharat Law. ‘India’s New Surrogacy Law 2024: A Detailed Analysis.’ https://bharat.law/opinions/india-new-surrogacy-law-2024-a-detailed-analysis/
- Live Law. ‘Challenge to Surrogacy Law: Supreme Court to Consider Prohibition on Commercial Surrogacy.’ June 2024. https://www.livelaw.in
- IMARC Group. ‘India Surrogacy Market Size, Share, Trends and Forecast 2025-2033.’ 2024. https://www.imarcgroup.com/india-surrogacy-market
- International Bar Association. ‘Surrogacy Abroad: Legal Pathways and Challenges for Indian Couples Seeking Parenthood Beyond Borders.’ August 2025. https://www.ibanet.org
- PMC / National Library of Medicine. ‘The Surrogacy (Regulation) Act, 2021: A Critique.’ 2023. https://pmc.ncbi.nlm.nih.gov/articles/PMC9816354/
- PMC / National Library of Medicine. ‘The Surrogacy (Regulation) Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?’ 2023. https://pmc.ncbi.nlm.nih.gov/articles/PMC10199460/
- PMC / National Library of Medicine. ‘Fertility Care in Low and Middle Income Countries: ART Access in India.’ 2024. https://pmc.ncbi.nlm.nih.gov/articles/PMC11558918/
- Outlook India. ‘From Rights Of Single Parents To Queer Persons, India’s Surrogacy Law Falls Short Of Expectations.’ January 2024. https://www.outlookindia.com
- ‘An Argument for the Inclusive Right to Parenthood by Surrogacy in India.’ March 2024. https://www.jurist.org
- Jus Corpus. ‘Parents By Heart, Not Law: The Fight for Adoption and Surrogacy Rights in India for Same-Sex Couples.’ August 2025. https://www.juscorpus.com
- Drishti IAS. ‘Amendment to Surrogacy Rules.’ https://www.drishtiias.com
- ‘Surrogacy in India.’ Last updated January 2026. https://en.wikipedia.org/wiki/Surrogacy_in_India
- Grand View Research. ‘India In Vitro Fertilization Market Size & Share Report, 2030.’ 2024. https://www.grandviewresearch.com
- World Health Organization (WHO). Global Infertility Statistics, cited in multiple market reports, 2024.
- ‘Is Surrogacy Legal in India?’ Updated 2026. https://sheivf.com/surrogacy-legal-in-india/
- IVF Conceptions. ‘Latest Surrogacy Law in India.’ Updated February 2026. https://www.ivfconceptions.com
- Fertility World. ‘Surrogacy Laws in India.’ Updated August 2025. https://fertilityworld.in
PMC / National Library of Medicine. ‘The Advantages and Disadvantages of Altruistic and Commercial Surrogacy in India.’ July 2023. https://pmc.ncbi.nlm.nih.gov/articles/PMC10327345/
