Is commercial surrogacy legal in India? No: the Surrogacy (Regulation) Act, 2021 bans it outright, allows only altruistic surrogacy where the surrogate receives nothing beyond documented medical expenses and 36 months of insurance, and punishes undertaking or advertising commercial surrogacy with up to 10 years’ imprisonment and a fine of up to ₹10 lakh. India was once a global surrogacy destination, and the ban remains the subject of an ongoing policy and constitutional debate. This is general information, not legal advice.
What the Ban Means
- Banned: any surrogacy where the surrogate is paid beyond medical expenses and insurance
- Allowed: altruistic surrogacy for eligible couples, through a close relative acting as surrogate
- Penalty: up to 10 years and ₹10 lakh for the main offences
- What the surrogate can receive: documented medical costs and 36 months of insurance cover
- Contracts: commercial surrogacy agreements are treated as void
How Commercial Surrogacy Is Defined
The Act separates two models.
- Section 2(f) defines altruistic surrogacy and Section 2(g) defines commercial surrogacy, according to Sheokand Legal
- In altruistic surrogacy, the surrogate receives no compensation, while in commercial surrogacy she is compensated beyond reimbursement of medical expenses, according to LiveLaw
- Commercial surrogacy is banned under Section 4(ii)(a), according to Sheokand Legal
How the Law Arrived
The ban came in stages.
- Before commercial surrogacy was banned for foreign clients in 2015, India was a popular destination for it, according to Wikipedia
- A 2016 Surrogacy (Regulation) Bill proposed allowing only altruistic surrogacy for heterosexual Indian couples married for at least five years
- The Surrogacy (Regulation) Act, 2021 prohibited commercial surrogacy nationwide and set up national and state boards, according to the same source
- It was passed on 25 December 2021, according to LiveLaw, and came into force in January 2022, according to Sheokand Legal
The Offences
The criminal provisions are broad.
- The Act creates offences for undertaking or advertising commercial surrogacy, exploiting the surrogate mother, selling or importing human embryos or gametes for surrogacy and abandoning, exploiting or disowning a surrogate child, according to a PRS-based summary on Kamaraj IAS Academy
- These attract a penalty of up to 10 years and a fine of up to ₹10 lakh
- Another source mentions lesser offences with up to five years and ₹5 lakh, according to a research paper, though the passage is cut off in the version I could read
- The penalty section is cited as Section 38 by Sheokand Legal, so check the section number in the Act
What a Surrogate Can Receive
The rule is strict.
- The surrogate may receive only documented medical expenses and mandatory insurance coverage, and any payment beyond that is illegal, according to Cloudnine Fertility
- The insurance must last 36 months, according to several sources, and the initial proposal had been 16 months, according to the research paper
- No monetary gain is permitted, according to Legal Service India
Who Can Be a Surrogate
Eligibility is narrow.
- She must be a close relative of the intending parents, according to Legal Service India
- She can act as a surrogate only once in her lifetime
- Age limits differ by source: 25 to 30 according to Legal Service India, 25 to 35 according to Cloudnine and Child Care Saran, and 35 or below according to IVF Conceptions, so check the current rule
Who Can Commission One
The couple must qualify.
- The wife must be between 23 and 50 and the husband between 26 and 55, according to Child Care Saran and IVF Conceptions
- Single men are excluded, according to Child Care Saran, and critics say the definition of “altruistic” discriminates against single parents and the LGBTQ+ community, according to Sheokand Legal
- Medical need must be certified, and the Act restricts surrogacy to legally married couples, according to LiveLaw
The Supreme Court Angle
The courts have been drawn in.
- LiveLaw describes issues framed by the Supreme Court about the 2021 Act, including a case where an intending couple over the age limits had started IVF and created embryos from frozen gametes before the Act took effect
- Towards the end of 2025, the Supreme Court held that age limits cannot be imposed retrospectively on couples who had frozen their embryos before the 2021 Act came into force, according to Child Care Saran
- The same LiveLaw piece raises constitutional concerns about reproductive freedom and bodily autonomy, and says it’s crucial to find a balanced approach, though I couldn’t find a ruling striking down the commercial ban
The 2024 Changes
The rules were loosened in one respect.
- The Surrogacy (Regulation) Act, 2021 is now read with its 2024 Amendment Rules, according to Cloudnine Fertility
- Earlier in this series I covered the amendment allowing the use of donor gametes in some cases, and the Kamaraj IAS Academy piece notes the 2021 Act had originally restricted married couples from using donor gametes
- Commercial surrogacy stays banned under both
Why Parliament Banned It
The reasons were exploitation and money.
- Poor women were being exploited, middlemen made huge profits and legal disputes, especially with foreign couples, were rising, according to Dr. Nalini Gupta’s IVF clinic
- Parliament aimed to protect surrogate women, according to the research paper, which argues the ban may have gone too far by prohibiting the practice entirely
- India has taken one of the strongest positions in the world, according to the same clinic’s page, which is its own characterisation
The Case Against the Ban
Critics offer another view.
- LiveLaw argues that, instead of an outright ban, a balanced approach allowing commercial surrogacy under stringent regulation could safeguard human rights
- The research paper notes that with the ban and no payment, finding willing surrogates is difficult, and says the ban stops women from earning from surrogacy
- IVF Conceptions lists “finding a willing surrogate” as a practical challenge when commercial surrogacy is banned
- Others argue that unpaid surrogacy within families can involve pressure that’s hard to see
Foreign Couples
The door is closed to them.
- Commercial surrogacy was banned for foreign clients in 2015, and the 2016 Bill and later Act excluded foreigners, according to Wikipedia
- Only married Indian couples are eligible under the current law, as covered in the earlier surrogacy piece in this series
What Happens to Existing Agreements
Old arrangements can’t be revived.
- Commercial surrogacy contracts are void, according to Sheokand Legal, though written consent and documentation are still needed for approvals
- Clinics that offer commercial arrangements risk the Act’s penalties
- Intending parents who pay a surrogate for services beyond expenses are also exposed
Cross-Border Reality
Many couples look abroad.
- Some Indian couples travel to countries where commercial surrogacy is lawful, but I haven’t covered their rules here, and they carry their own legal and ethical risks
- Citizenship, parentage and return to India can be complicated, so take advice before signing anything overseas
If You’re Considering Surrogacy
A cautious route helps.
- Check whether you meet the Act’s eligibility conditions
- Use only registered clinics and avoid agents who promise paid surrogates
- Ensure the surrogate is eligible, understands her rights and gives informed consent
- Arrange the required insurance for 36 months
- Keep records of every medical expense
- Take legal advice early
Where the Sources Disagree
Some details differ.
- The surrogate’s age band, which varies from 25–30 to 25–35 to 35 or below
- The section numbers for penalties
- Whether the ban faces a pending constitutional challenge, which these sources describe only as issues framed by the Court
- Many are fertility clinic pages, so read the Act and the 2024 Rules directly
FAQs
Q1. Is commercial surrogacy legal in India?
No. The Surrogacy (Regulation) Act, 2021 bans it and allows only altruistic surrogacy, with penalties of up to 10 years and ₹10 lakh.
Q2. Can a surrogate be paid in India?
Only for documented medical expenses and 36 months of insurance. Any other payment counts as commercial surrogacy, which is illegal.
Q3. What is the punishment for commercial surrogacy?
Up to 10 years’ imprisonment and a fine of up to ₹10 lakh for offences such as undertaking or advertising it or exploiting the surrogate.
Q4. Who can be a surrogate in India?
A close relative of the intending couple within the age band set by the Act, who has not been a surrogate before and meets the medical conditions.
