Yes, a married couple can have a child through a surrogate in India, but only altruistic surrogacy, only with the certificates issued by the State Appropriate Authority, and only through a clinic registered under the Surrogacy (Regulation) Act, 2021, in force since 25 January 2022. Surrogacy law in India now runs on that Act, the Surrogacy (Regulation) Rules, 2022, and the Assisted Reproductive Technology (Regulation) Act, 2021 for the clinic and any donor gamete. You must be legally married to each other, inside the age bands in Section 4, without a surviving child, and the wife must have a medical indication for gestational surrogacy certified by a District Medical Board. The surrogate must be an ever married woman with a child of her own, aged 25 to 35 on the day of implantation, and she can do this once in her life.
Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.
This guide is written for a married couple in Bengaluru who have been told, after failed IVF or a diagnosis, that the wife cannot carry a pregnancy. It does not cover adoption, which runs on a different statute and is explained in our guide to adoption law in India.
| Who | What the Act requires | Provision |
|---|---|---|
| The intending couple | A legally married Indian man and woman. On the day of certification the wife is 23 to 50 and the husband 26 to 55. No surviving child, whether born to you, adopted or born through surrogacy, unless that child is mentally or physically challenged or has a life threatening disorder or fatal illness with no permanent cure, certified by a District Medical Board. | Section 2(1)(h), Section 4(iii)(c) |
| The medical case | A District Medical Board certificate that either or both of you have a medical indication necessitating gestational surrogacy. Rule 14 lists them: no uterus or an abnormal uterus, a uterus removed for a condition such as gynaecological cancer, recurrent implantation failure after multiple IVF or ICSI attempts, unexplained repeated pregnancy loss, or an illness that makes carrying a pregnancy to viability impossible or life threatening. | Section 4(iii)(a)(I), Rule 14 |
| The surrogate | An ever married woman with a child of her own, aged 25 to 35 on the day of implantation, willing, brought to the authority by you, never a surrogate before, not using her own eggs, and holding a certificate of medical and psychological fitness. Not more than three attempts on her. | Section 4(iii)(b), Rule 6 |
| The certificates | A certificate of essentiality for you (the medical indication, a Magistrate's order on parentage and custody, and 36 months of insurance for the surrogate), an eligibility certificate for the surrogate, and a separate eligibility certificate for you as a couple, all from the State Appropriate Authority, which must decide within 90 days. | Section 4(iii)(a), (b) and (c), Section 36(h) |
Can we legally have a child through a surrogate in India?
Yes, if you are a legally married Indian couple with a medical indication for gestational surrogacy and you go through a registered clinic on the altruistic model that Section 4 of the Surrogacy (Regulation) Act, 2021 lays down. The Act came into force on 25 January 2022 by notification S.O. 292(E). Section 4(ii) allows a surrogacy procedure for four purposes only: an intending couple with a medical indication necessitating gestational surrogacy, altruistic surrogacy, no commercial purpose, and no production of children for sale, prostitution or any other form of exploitation.
Two definitions do most of the work. "Gestational surrogacy" is explained in Section 4 itself: the surrogate carries an embryo implanted in her womb and the child is not genetically related to her. "Altruistic surrogacy" under Section 2(1)(b) means no charges, expenses, fees, remuneration or monetary incentive of whatever nature go to the surrogate, her dependants or her representative, except her medical expenses, such other expenses as the Rules prescribe, and the insurance cover. Everything else is commercial surrogacy, banned by Section 3(ii) in any form. Before the first procedure, Section 4(iii) requires the clinic's director and the treating doctor to record in writing that every condition is satisfied, which is why a registered clinic will not start until your paperwork is complete.
Do we qualify as an intending couple under surrogacy law in India?
You qualify if you are married to each other, the wife is between 23 and 50 and the husband between 26 and 55 on the day the certificate is issued, you have no surviving child, and a District Medical Board certifies a medical indication for gestational surrogacy. Section 2(1)(h) defines a "couple" as a legally married Indian man and woman, and the age bands in Section 4(iii)(c)(I) are the ones the authority applies. The Act sets no minimum length of marriage, though Section 4(iii)(c)(III) lets the National Board add conditions by regulation.
The no-child rule in Section 4(iii)(c)(II) is strict: no surviving child, biologically, through adoption or through an earlier surrogacy. The single exception is a living child who is mentally or physically challenged or suffers from a life threatening disorder or a fatal illness with no permanent cure, certified by the District Medical Board and approved by the authority.
The medical indication is about the wife's ability to carry, not the husband's fertility. Every item in Rule 14 describes the woman, and the Supreme Court in Arun Muthuvel v Union of India on 18 October 2023 called the rule woman-centric. If the problem is male factor infertility alone, the route is IVF with the wife carrying, and surrogacy is not open to you.
Can a single woman, a live-in couple or an NRI couple use a surrogate?
A single woman can, but only if she is an Indian widow or divorcee aged 35 to 45, and she must use her own eggs with donor sperm. That is the "intending woman" in Section 2(1)(s), and the 2024 amendment to Form 2 spells out the gamete rule for her. A never married woman, a single man, a live-in couple and a same-sex couple are outside the Act as it stands. Challenges to those exclusions are pending in the Supreme Court, and until a provision is struck down the Act as written governs.
A couple of Indian origin living abroad can use surrogacy in India, with one extra step. The proviso to Section 4(ii)(a) requires a couple of Indian origin, or an intending woman, to obtain a certificate of recommendation from the National Assisted Reproductive Technology and Surrogacy Board, applied for on Form 1 under Rule 4. Form 1 asks for passport numbers, the foreign country of residence, proof of marriage and proof of age, and the certificate of essentiality still comes from the appropriate authority. A foreign national with no Indian origin cannot commission a surrogacy in India under this Act.
Who can be our surrogate, and does she have to be a relative?
She does not have to be a relative. Section 4(iii)(b) requires an ever married woman having a child of her own, aged 25 to 35 on the day of implantation, and Form 2 itself lets her declare that she is "unrelated or related" to you. A widow or a divorcee with her own child counts as ever married. She must never have acted as a surrogate before, because Section 4(iii)(b)(IV) allows it once in a lifetime, and Rule 6 caps the attempts on her at three. She cannot provide her own eggs, and she must hold a fitness certificate from a registered medical practitioner.
The proviso to Section 4(iii)(b)(II) is the part couples miss: you approach the appropriate authority with a willing woman. The clinic does not find her for you. Section 38(1)(a) makes it an offence to run an organised group to empanel or select surrogate mothers or to use brokers or intermediaries, and Section 3(v) bans any advertisement that seeks a surrogate or states that a woman is willing to be one.
Key takeaway. You bring the surrogate to the authority yourself, with her free written consent under Section 6, and she keeps the right to withdraw that consent at any time before the embryo is implanted. Anyone who supplies a surrogate for you commits an offence carrying up to ten years' imprisonment under Section 38.
Can we use a donor egg or donor sperm?
Since 21 February 2024, yes, one donor gamete is allowed where the District Medical Board certifies that either the husband or the wife has a medical condition necessitating it, on the condition that the child has at least one gamete from you. That is the substituted paragraph 1(d) of Form 2, inserted by the Surrogacy (Regulation) Amendment Rules, 2024, notification G.S.R. 119(E). Both gametes from donors is never allowed, and the surrogate herself can never be the egg donor under Section 4(iii)(b)(III).
The rule has a short history that explains why clinics are cautious. The 2022 Rules originally listed "the fertilisation of a donor oocyte by the sperm of the husband" as a permitted method in Form 2. On 14 March 2023, notification G.S.R. 179(E) substituted that paragraph to bar donor gametes altogether. Women with MRKH syndrome, born without a uterus, went to the Supreme Court, and in Arun Muthuvel v Union of India, orders of 9 and 18 October 2023, a bench of Justices Nagarathna and Bhuyan held the substituted paragraph prima facie contrary to Rule 14(a) and stayed it for a petitioner whose District Medical Board report confirmed she could not produce eggs. The 2024 amendment then rewrote the paragraph to allow one donor gamete on a Board certificate.
The donor side is governed by the Assisted Reproductive Technology (Regulation) Act, 2021. Under Section 27, a donor gamete comes only from a registered ART bank, sperm donors are aged 21 to 55, oocyte donors 23 to 35, an oocyte donor donates once in her life with not more than seven oocytes retrieved, and a bank may not supply one donor's gametes to more than one couple. Section 22(1)(b) requires you to buy 12 months of insurance for the oocyte donor, and Section 31(2) makes the donor relinquish all parental rights over any child born from the gamete.
Four numbers from the Act and the Rules settle most first-meeting questions.
Age bands for the couple
The wife must be 23 to 50 and the husband 26 to 55 on the day the eligibility certificate is issued, under Section 4(iii)(c) of the Act.
Surrogate 25 to 35
An ever married woman with her own child, aged 25 to 35 on the day of implantation, once in her life, with not more than three attempts under Rule 6.
One donor gamete
Allowed since February 2024 only where the District Medical Board certifies a medical condition, and the child must carry at least one gamete from the intending couple.
36 months of insurance
Bought for the surrogate from an IRDAI recognised insurer before any procedure begins, for a sum covering all complications of pregnancy and post partum delivery.
What is the certificate of essentiality and how do we get it?
The certificate of essentiality is the appropriate authority's written confirmation, under Section 4(iii)(a), that three things are in place: a District Medical Board certificate of medical indication in favour of either or both of you, an order of a Magistrate of the first class or above on the parentage and custody of the child to be born, and 36 months of insurance for the surrogate. Section 36(h) gives the authority 90 days to decide.
The District Medical Board is defined in the Explanation to Section 4(iii)(a)(I): the Chief Medical Officer, Chief Civil Surgeon or Joint Director of Health Services of the district in the chair, with the chief gynaecologist or obstetrician and the chief paediatrician of the district. Its certificate should name the Rule 14 indication. The Magistrate's order is applied for jointly by you and the surrogate before the procedure, and Section 4(iii)(a)(II) says it "shall be the birth affidavit after the surrogate child is born".
The insurance is prescribed by Rule 5: a general health insurance policy in the surrogate's favour for 36 months from an insurer or agent recognised by the Insurance Regulatory and Development Authority, for an amount sufficient to cover all complications of the pregnancy and post partum delivery. Rule 5(2) adds an affidavit, sworn by you before a Metropolitan Magistrate or a Judicial Magistrate of the first class, guaranteeing that cover. A rejection is appealed to the State Government within 30 days of receipt under Section 14 and Rule 12, on Form 5.
Deadline warning. The 36-month policy and the Magistrate's order must exist before the certificate of essentiality is applied for, the authority has 90 days to decide, and an appeal against a rejection must be filed within 30 days of receiving it. Miss the 30 days and the rejection stands.
What is the certificate of eligibility, and who issues it in Karnataka?
There are two eligibility certificates, one for the surrogate under Section 4(iii)(b) and a separate one for you as a couple under Section 4(iii)(c), and in Karnataka both come from the State Appropriate Authority constituted by the Health and Family Welfare Department's notification No. HFW 176 FPE 2020 dated 8 August 2022. That authority is chaired by the Commissioner of Health and Family Welfare Services, with the Project Director (RCH) as Vice Chairperson, a Deputy Secretary of the Law Department as member and the Deputy Director (PC and PNDT) as Member Secretary.
For the surrogate's certificate, expect to produce her proof of marriage, her child's birth certificate, her age and identity proof and the fitness certificate. For your own, carry the marriage certificate, age proof for both of you and, where the exception applies, the District Medical Board certificate about your existing child. Section 14 covers rejection of these certificates too, with the same 30-day appeal.
Which clinic can do this, and how do we check it is registered?
Only a surrogacy clinic registered with the appropriate authority under Section 11 may conduct, or even assist in, a surrogacy procedure, and you check the registration on the National ART and Surrogacy Registry at registry.artsurrogacy.gov.in, which lists surrogacy clinics separately from ART clinics and ART banks. Section 3(iv) bars any doctor from conducting a procedure at a place that is not registered. Ask for the certificate of registration in Form 4, which Section 12(3) makes valid for three years and Section 12(4) requires the clinic to display.
A fertility clinic registered under the ART Act for IVF is not, by that fact, a registered surrogacy clinic. Schedule 1 to the Rules fixes the minimum staff, Rule 10 makes the clinic pay a registration fee of Rs 2 lakh, Rule 8 limits the gynaecologist to one embryo per treatment cycle with up to three only in special circumstances, and Section 46 requires the clinic to keep every record, consent and agreement for 25 years.
What can we lawfully pay the surrogate, and what counts as commercial surrogacy?
You may pay her medical expenses, such other expenses as the Rules prescribe, and the insurance premium, and nothing else. Section 2(1)(g) defines commercial surrogacy as giving any payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind to the surrogate mother or her dependants or her representative, beyond those three heads. A payment for lost wages, a gift or a deposit in her husband's account is not carved out by the Act. Before you pay anything beyond the hospital bills and the premium, check the current Rules for a prescribed expense that covers it.
Section 40 is the provision aimed at you. An intending couple who seeks the aid of a clinic or a doctor for surrogacy that is not altruistic, or for commercial purposes, faces imprisonment up to five years and a fine up to Rs 5 lakh for a first offence, and up to ten years and Rs 10 lakh for a subsequent one. Section 42 adds a presumption: unless the contrary is proved, the court presumes that the surrogate was compelled by her husband, the intending couple or a relative, and that person is liable for abetment under Section 40.
Common mistake. Treating money to the surrogate's family as a gift rather than a payment. The definition in Section 2(1)(g) reaches her dependants and her representative, cash or kind, and Section 42 presumes compulsion the moment the arrangement is questioned.
What insurance do we buy and what agreement do we sign?
You buy a general health insurance policy in the surrogate's favour for 36 months from an IRDAI recognised insurer or agent, for a sum sufficient to cover all complications of pregnancy and post partum delivery, and you sign Form 2, the Consent of the Surrogate Mother and Agreement for Surrogacy, at the clinic with the surrogate, the doctor and a clinic witness under Rule 7. Rule 5(2) adds your affidavit before a Magistrate guaranteeing the cover, and if a donor egg is used, Section 22(1)(b) of the ART Act adds 12 months of insurance for the oocyte donor.
Form 2 does more than record consent. Paragraph 7 records that you and the surrogate have worked out the medical and other expenses "in writing" and that an authenticated copy has been filed with the clinic, which must keep it confidential. Paragraph 8 records her agreement to relinquish all rights over the child and hand the child over to you, to the survivor if one of you dies during the pregnancy, or to a named person if both of you die or you separate. Paragraph 12 gives her the right to refuse any sex determination test, paragraph 13 preserves her right to terminate on medical advice under the MTP Act, and paragraph 19 is her undertaking not to disclose your identity.
Two things cannot be contracted out of: her Section 6(2) option to withdraw consent before the embryo is implanted, and the Section 10 bar on forcing her to abort at any stage. A clause that purports to remove either has no effect.
Whose child is it, and what goes on the birth certificate?
The child is yours in law from birth. Section 8 deems a child born through surrogacy to be the biological child of the intending couple, entitled to every right and privilege of a natural child under any law in force, and the Magistrate's order on parentage and custody that you obtained before the procedure is, in the words of Section 4(iii)(a)(II), the birth affidavit once the child is born. Where a donor gamete was used, Section 31(2) of the ART Act makes the donor relinquish all parental rights.
In practice the hospital's discharge record and the Magistrate's order are what you take to the birth registrar so that the birth is registered in your names. Confirm the registrar's documentary requirements before the delivery, because the registrar works under the birth registration law, not the Surrogacy Act. The flip side is Section 7: you may not abandon the child, in India or outside, for any reason whatever, and the section names the excuses in advance, a genetic or birth defect, a medical condition, the sex of the child, or more than one baby. Abandoning or disowning the child is also an offence under Section 38(1)(c).
What if the pregnancy has to be terminated, or the surrogate changes her mind?
A termination is lawful only under the Medical Termination of Pregnancy Act, 1971, only with the surrogate's written consent, and only with the authorisation of the appropriate authority, and nobody, including you, may force her to abort at any stage. That is the combined effect of Section 3(vi), Section 10 and Rule 9. The gestational limits and the consent rules of the MTP Act are explained in our guide to the medical termination of pregnancy law in India.
If the surrogate changes her mind before implantation, Section 6(2) lets her withdraw and you start again with another willing woman. After implantation the Act gives her no withdrawal right, paragraph 8 of Form 2 binds her to hand the child over, and Section 8 vests parentage in you, so a refusal would be enforced through the court that passed the parentage and custody order. The constitutional footing of a woman's control over her own body, which a court will weigh in any such dispute, is set out in our guide to reproductive autonomy in India.
What happens if any of this is done outside the Act?
Every offence under the Surrogacy Act is cognizable, non-bailable and non-compoundable under Section 43, plea bargaining is excluded by Section 45, and the punishments run to ten years.
| Conduct | Provision | Punishment |
|---|---|---|
| Commercial surrogacy, using brokers or an organised group to find surrogates, advertising commercial surrogacy, abandoning or exploiting the child or the surrogate, selling or importing embryos or gametes, sex selection | Section 38 | Imprisonment up to ten years and fine up to Rs 10 lakh |
| Any other contravention by a doctor, embryologist, clinic owner or clinic employee | Section 39 | Imprisonment up to five years and fine up to Rs 10 lakh, and on a repeat the State Medical Council is asked to suspend registration for five years |
| An intending couple or any person who seeks a clinic's or a doctor's aid for surrogacy that is not altruistic, or for commercial purposes | Section 40 | First offence up to five years and Rs 5 lakh, subsequent offence up to ten years and Rs 10 lakh |
| Any contravention of the Act or Rules with no specific penalty | Section 41 | Up to three years and Rs 5 lakh, plus up to Rs 10,000 for every day a contravention continues after conviction |
| On the ART side: exploiting the couple or the donor, selling or importing gametes, using intermediaries to obtain donors | ART Act Section 33 | Fine of Rs 5 lakh to Rs 10 lakh for a first contravention, and three to eight years with Rs 10 lakh to Rs 20 lakh after that |
Under Section 44 a court takes cognizance only on a written complaint by the appropriate authority, or by a person or social organisation that has first given the authority 15 days' notice of the alleged offence.
What does the process look like from start to finish?
The sequence below follows Section 4 and the Rules, and each step produces a document the next one needs.
- Get the diagnosis in writing from your treating gynaecologist and match it to one of the four indications in Rule 14.
- Apply to the District Medical Board for the certificate of medical indication, and if a donor gamete will be needed, have the Board certify the condition that necessitates it in the same certificate.
- Identify a willing woman who meets Section 4(iii)(b). Collect her marriage proof, her child's birth certificate and her age proof, and arrange her fitness certificate.
- Choose a surrogacy clinic listed on the National ART and Surrogacy Registry and see its Form 4 certificate. Any donor gamete comes from a registered ART bank.
- Buy the 36-month general health insurance policy for the surrogate, and 12 months of cover for an oocyte donor if one is used. Swear the Rule 5(2) affidavit before a Magistrate.
- File the joint application with the surrogate before a Magistrate of the first class or above for the order on parentage and custody of the child to be born.
- Apply to the State Appropriate Authority for the certificate of essentiality and the two eligibility certificates. The authority has 90 days, and a rejection is appealed within 30 days on Form 5.
- If you are a couple of Indian origin living abroad, or an intending woman, apply to the National Board on Form 1 for the certificate of recommendation as well.
- Sign Form 2 at the clinic with the surrogate, the doctor and a clinic witness, and file the written expenses agreement with the clinic.
- Embryo transfer follows, one embryo per cycle under Rule 8, with not more than three attempts under Rule 6. The surrogate may withdraw at any time before implantation.
- At the birth, the Magistrate's order serves as the birth affidavit. Register the birth in your names and keep every certificate, order, policy and consent.
What does it cost and how long does it take?
The statute fixes only two clocks, 90 days for the authority to decide the certificates and 30 days for an appeal, and everything else is indicative. The District Medical Board sitting, the Magistrate's order and the insurance purchase each take weeks rather than days, and six months to a year from the first application to embryo transfer is a realistic planning range.
On money, the law fixes the heads rather than the amounts. You pay the clinic's charges for each cycle, and since Rule 6 allows up to three attempts, budget for more than one. You pay every medical expense of the surrogate through the pregnancy, the delivery and the post partum period, the premium on the 36-month policy and, if a donor egg is used, the ART bank's charges and the donor's 12-month cover, plus court fees and professional fees. The one line that must stay at zero is any payment to the surrogate or her family beyond those heads, because that line is commercial surrogacy under Section 2(1)(g).
Where these applications actually stall
What I tell couples at the first meeting is that the medicine is rarely the problem, the paperwork is. The District Medical Board certificate has to describe the condition in the language of Rule 14, not in a clinician's shorthand, or the authority sends it back. The Magistrate application has to be joint with the surrogate and about the parentage and custody of a child not yet conceived, an unusual petition for a first class Magistrate's court that is often filed in the wrong form. The insurance stalls most often, because Rule 5 wants a 36-month policy and an annual retail health policy does not satisfy that on its face, so the term has to be confirmed with the insurer in writing before the authority sees it. And the money has to move to hospitals, insurers and the ART bank by traceable transfer, never to the surrogate or her family, because Section 42 will presume the worst if the arrangement is ever questioned. Our family law practice handles both routes from Bengaluru.
The prohibitions below carry criminal consequences for the couple, not only for the clinic.
Commercial surrogacy banned
Any payment to the surrogate or her family beyond medical expenses, prescribed expenses and insurance is commercial surrogacy, punishable for the couple under Section 40.
No advertising, no agents
Seeking a surrogate through a post, a broker or a clinic panel is barred by Section 3(v) and Section 38(1)(a), with imprisonment up to ten years.
Child is yours by statute
Section 8 deems the child your biological child from birth, and Section 7 forbids abandoning the child for any reason, including a birth defect or twins.
Offences are non-bailable
Every offence under the Act is cognizable, non-bailable and non-compoundable under Section 43, and plea bargaining is excluded by Section 45.
Frequently Asked Questions
Is surrogacy legal in India for a married couple?
Yes. The Surrogacy (Regulation) Act, 2021 permits altruistic gestational surrogacy for a legally married Indian couple with a medical indication certified by a District Medical Board, through a registered clinic, with the certificates issued by the State Appropriate Authority. Commercial surrogacy is a criminal offence.
Can we pay the surrogate for her time or lost income?
No. Section 2(1)(b) allows only her medical expenses, such other expenses as the Rules prescribe, and the insurance cover. Any other payment, reward or benefit in cash or kind to her, her dependants or her representative is commercial surrogacy, and Section 40 punishes the couple with up to five years' imprisonment for a first offence.
Can my sister or a friend be the surrogate?
Yes, if she is ever married with a child of her own, aged 25 to 35 on the day of implantation, has never been a surrogate before and holds a fitness certificate. The Act does not require her to be a relative, and Form 2 lets her record that she is related or unrelated to you.
We already have one child. Can we still use surrogacy?
Not unless that child is mentally or physically challenged or has a life threatening disorder or fatal illness with no permanent cure, certified by a District Medical Board and approved by the authority. Section 4(iii)(c)(II) otherwise bars a couple with any surviving child, whether born to them, adopted or born through surrogacy.
Can we use a donor egg if my wife cannot produce eggs?
Yes, since the February 2024 amendment to Form 2, provided the District Medical Board certifies the medical condition and the child has at least one gamete from the couple, which means the husband's sperm. Both gametes from donors is not allowed, and the surrogate cannot be the egg donor.
Do we have to adopt the child after the birth?
No. Section 8 deems a child born through surrogacy the biological child of the intending couple with all the rights of a natural child, and the Magistrate's order on parentage and custody obtained before the procedure serves as the birth affidavit.
Can the surrogate keep the baby?
Before implantation she may withdraw her consent under Section 6(2). After implantation the Act gives her no withdrawal right, Form 2 binds her to hand the child over, and Section 8 makes the child yours in law, so a refusal would be enforced through the court that passed the parentage and custody order.
Can an NRI or OCI couple use a surrogate in India?
A couple of Indian origin can, with a certificate of recommendation from the National ART and Surrogacy Board applied for on Form 1, in addition to the certificates every couple needs. Foreign nationals with no Indian origin cannot commission a surrogacy in India under the Act.
What if the appropriate authority rejects our application?
Section 14 gives you 30 days from receipt of the rejection to appeal to the State Government, on Form 5 under Rule 12. The authority itself must decide within 90 days and record its reasons in writing.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
