Overview of India’s Surrogacy Laws and Recent Reforms
India’s surrogacy regime is governed by the Surrogacy (Regulation) Act, 2021, which came into force in January 2022. This law bans commercial surrogacy and permits only altruistic surrogacy – the surrogate mother can receive medical expenses and insurance but no profit or compensation. The Act defines surrogacy as a gestational arrangement where “one woman bears a child and delivers it to an intending couple” with the intent of handing over the baby. In parallel, the Assisted Reproductive Technology (Regulation) Act, 2021 regulates in vitro fertilization (IVF) clinics and requires all ART clinics and banks to register under a national registry.
Key provisions of the Surrogacy Regulation Act include:
- Eligibility Certificates: All intending parents and surrogate mothers must obtain a certificate of essentiality and a certificate of eligibility from the appropriate authority (usually a State/UT Board) before any procedure.
- Eligibility Criteria: The law limits surrogacy to heterosexual Indian married couples suffering from infertility. The couple must have been married for at least five years and have a medical certificate showing an inability to conceive or carry a child. Widows or divorced women (between ages 35–45) may also commission surrogacy as sole recipients. Crucially, prospective surrogacy parents must be Indian nationals – foreign citizens, including Overseas Citizens of India (OCI) and Persons of Indian Origin (PIO), are not eligible. (In practice, Indian missions no longer issue medical visas for surrogacy purposes to foreign nationals.)
- Surrogate Mother Criteria: A surrogate must be a married woman aged 25–35 with at least one living child of her own. No woman may act as a surrogate more than once, and each surrogate pregnancy is limited to a single embryo transfer.
- Regulatory Bodies: A National ART and Surrogacy Board (with the Health Minister as chair) and State/UT Boards oversee implementation, advise policy, and set clinic standards. Surrogacy clinics must register under the new laws and can face penalties for non-compliance
Together, these provisions have created one of the world’s most restrictive surrogacy regimes. The ban on commercial surrogacy (enacted to prevent exploitation of poor women) means that only unpaid “selfless” arrangements are legal. In effect, a surrogate may only recover maternity and health costs; any additional payment is illegal. This mirrors the January 2022 ban on foreign nationals commissioning surrogacy – only Indian-citizen couples may use surrogacy at all. These changes form the backdrop for how 2024 updates affect NRI couples.
Eligibility and Process for NRI Couples
Non-Resident Indian (NRI) couples – Indian citizens living abroad – remain legally eligible for surrogacy in India, provided they meet the same criteria as resident Indians. In practice, this means both spouses must hold Indian citizenship and satisfy the marriage duration (≥5 years) and infertility requirements. (A foreign spouse breaks eligibility; at least one partner must be an Indian national.) For example, one fertility clinic notes that “any couple of Indian origin where the age of the woman is between 23 to 50 yrs and [the husband] between 26 to 55 yrs can seek surrogacy” if childless and certified infertile. These age limits and marriage requirements are strictly enforced.
Like resident couples, NRIs must obtain official certificates of eligibility: a Certificate of Medical Indication (from a District Medical Board) demonstrating the need for gestational surrogacy, and a Certificate of Essentiality and Eligibility from the State or UT Appropriate Authority. The Appropriate Authority also issues the formal surrogacy agreement and, after birth, a parentage order via court to establish legal parenthood. These steps ensure that even NRI couples follow the same regulatory process.
In addition, the Assisted Reproductive Technology Act mandates that all treatment occur at a registered ART clinic. NRIs (like all intending parents) often must travel to India to meet these requirements. The National ART and Surrogacy Board’s FAQs explain that Indian citizens living abroad “may still need to participate in court hearings in India to establish the legal guardianship” of the surrogate-born child. In short, NRIs are treated as Indian couples under the law; there is no separate category or liberalization for NRIs and OCIs. If a couple includes any foreign national, they cannot lawfully commission surrogacy in India.
How the Ban on Commercial Surrogacy Impacts NRIs
The complete ban on commercial surrogacy poses major practical barriers for NRI couples. Under the 2021 Act, paying a surrogate beyond legitimate expenses is illegal. That means NRI couples cannot enter a paid arrangement or hire a surrogate through an agency; surrogacy must be altruistic. In practice, this forces couples to find a relative or close acquaintance willing to be a surrogate without monetary compensation. For many NRIs, especially those without family in India, this makes surrogacy virtually inaccessible.
Even when willing surrogates are found, NRIs face the same certification and residency hurdles as resident couples. A foreign spouse (e.g. an American husband married to an Indian wife) would disqualify the couple; both must be Indian citizens. Policy circulars from the Ministry of External Affairs have reiterated that Indian missions no longer issue surrogacy-related visas to foreign nationals, effectively prohibiting medical tourism. (In the past, even OCIs had to get a special FRRO permit and embassy letters; now the simple rule is “if you aren’t Indian, you can’t commission surrogacy”.)
The legal advice for NRI couples is therefore strictly constrained: only joint Indian nationals with bona fide infertility can proceed, and then only under altruistic terms. Clinics or agencies cannot facilitate cash payments. According to one fertility-law blog, intending parents “must have medical eligibility and financial stability” certified, and sign a notarized surrogacy agreement. Because payments are limited to medical expenses, surrogate mothers are often disinclined unless they personally know the couple. Critics note that this “selfless surrogacy” model makes finding a surrogate extremely difficult. Some worry the ban on commercial surrogacy may drive the practice underground or force desperate couples to look abroad.
Moreover, NRIs who do pursue surrogacy must understand the heavy penalties for any illegality. The Act imposes up to 10 years’ imprisonment and fines on anyone (couple, doctor, or clinic) engaging in commercial surrogacy or unauthorized arrangements. For example, if an NRI couple secretly paid a surrogate as a “gift,” they would face criminal charges equivalent to those for child trafficking. Similarly, using a non-Indian gestational carrier or failing to comply with registration can lead to prosecution. These strict penalties underscore that access to surrogacy is curtailed unless all conditions (Indian citizenship, marital status, altruism) are met.
Recent Amendments (2023–24) and Official Notifications
In 2023–2024 the government issued key amendments to clarify and slightly relax certain rules, which affect all couples (including NRIs) planning surrogacy. Notably, the Surrogacy (Regulation) Amendment Rules, 2023 (notified on March 14, 2023) revised the method of treatment clause in the rules. It originally stated that an intending couple “should have both gametes from the intending couple” and disallowed any donor gametes. In effect, this prohibited using a donor egg or sperm for a couple. The amended 2023 rules thus reinforced the strict view that both egg and sperm must come from the husband and wife (except for single women, who may use donor sperm).
However, a subsequent amendment in early 2024 introduced an important exception. The Surrogacy (Regulation) Amendment Rules, 2024 (published in the Gazette on February 21, 2024) now allow one donor gamete in surrogacy if medically necessary. According to this notification, when a District Medical Board certifies that either partner has a condition requiring a donor sperm or egg, the clinic may use a donor gamete – provided the resulting child still has at least one gamete from the intending couple. In other words, an NRI couple in which, say, the husband is azoospermic or the wife has non-viable eggs can now legally proceed with a donor, as long as the other spouse provides the remaining gamete. (Single widowed/divorced women remain able to use donor sperm with their own egg.)
The 2024 amendment is significant for NRI couples with fertility issues, as it eases the prior absolute ban on donor gametes. The regulations explicitly require that “the child to be born must have at least one gamete from the intending couple”. The change was publicly announced in a Health Ministry notification and summarized by legal portals in February 2024. It was also incorporated into the official FAQs by the National ART & Surrogacy Board, which now notes: “donor gamete use is allowed subject to medical board certification”.
Aside from gamete rules, authorities have also addressed certificate procedures. For example, an Instruction of 6 Jan 2023 clarifies that medical indication certificates can be issued by the board where the intending parents reside (or one resides). The ART and Surrogacy Boards have advised that eligibility certificates (essentiality/eligibility) are valid for one year from issuance, giving couples flexibility in scheduling. All of these official updates – gazette notifications and ministry FAQs – tighten the legal framework. NRIs and others must keep abreast of such changes; at minimum, the 2024 rules mean that foreign-bound couples with infertility can consider IVF surrogacy using a donor egg or sperm under a documented medical exception.
Case Law Highlights
Two landmark judgments illuminate India’s surrogacy landscape. Baby Manji Yamada v. Union of India (2009) was a watershed in international surrogacy law. In that case, a Japanese couple had commissioned an Indian surrogate, but divorced before the child’s birth. The baby (Manji) was born in 2008 and left without a clear legal identity or nationality. The Supreme Court intervened to protect the child’s welfare. Although surrogacy was then unregulated, the Court emphasized that the biological tie and best interests of the child should prevail. It directed the government to issue Manji travel documents so she could join her Japanese grandmother, recognizing the genetic father’s parentage. The Court explicitly noted the “lack of legal framework” for surrogacy in India and the need for regulation. Baby Manji thus underscored the rights of surrogate-born children and pointed to the necessity of laws like the Surrogacy Act.
Another significant case is Devika Biswas v. Union of India (2016). This Supreme Court decision did not involve surrogacy per se, but it broadly affirmed that “the right to reproductive autonomy is an essential facet of Article 21 [the right to life and personal liberty]”. In Devika Biswas, the court recognized that individuals have a constitutional right to make reproductive choices. This principle underpins India’s approach to ART and surrogacy, suggesting that outright prohibition of all assisted reproduction (even for just compensation) might be subject to challenge as unreasonable. While Devika Biswas did not directly change surrogacy policy, it has been cited by advocates for more inclusive reproductive rights (e.g. for single or same-sex parents). For NRIs, these cases collectively mean that courts will generally favor the legal parents’ rights and the child’s welfare, provided statutory conditions are met.
Penalties and Enforcement
Compliance with the Surrogacy and ART laws is closely monitored by authorities. Clinics are inspected and must maintain records in the National ART Registry. Violations carry severe penalties. Under the Act, any person (including intending parents, surrogate, or doctor) who commits commercial surrogacy or violates a condition of altruistic surrogacy faces up to 10 years’ imprisonment and a fine (commensurate with the offense). For example, a family found to have secretly paid a surrogate would be treated like a trafficker under the law. Clinics or agencies advertising surrogacy services (or operating without registration) similarly face prosecution. Abandonment of a surrogate-born child is also an offense. The strict enforcement framework deters abuse but also means that any misstep by an NRI couple (or their medical team) can lead to criminal liability.
Prospective NRI parents considering surrogacy must therefore obtain qualified legal advice. They should ensure all paperwork (affidavits, certificates, agreements) is in order and that the surrogate mother truly meets the “altruistic” criteria. While the ban on commercial surrogacy limits many options, compliance avoids the risk of prosecution. Lawyers advise that every document – from embassy letters to medical reports – should be carefully prepared before starting the process.
Conclusion
India’s surrogacy laws in 2024 are among the most regulated in the world. For NRI couples, the 2021 ban on commercial surrogacy and related restrictions mean that only married Indian citizens with a certified medical need can pursue surrogacy here. The law’s altruistic focus forces intending parents to rely on unpaid surrogates (usually family), and the prohibition of foreign nationals has effectively ended India’s earlier surrogacy tourism. The 2023–24 amendments (e.g. allowing one donor gamete) provide limited relief for infertility issues, but do not change the fundamental access barriers for NRIs. In this complex landscape, NRI surrogacy legal advice is essential. Couples should work with experienced legal and medical teams to navigate eligibility requirements, obtain the necessary government certificates, and ensure full compliance with the Surrogacy (Regulation) Act and ART Act.
Although these laws protect surrogate mothers and children from exploitation, they also constrain options for abroad-based parents. Any NRI considering surrogacy in India must plan carefully, as the ban on commercial surrogacy and strict eligibility criteria severely limit who can avail these services. Ultimately, staying informed of the current regulations (and cited case-law) will help prospective parents understand their rights and obligations under the Surrogacy Regulation Act.
References
- Ministry of Health and Family Welfare, Surrogacy (Regulation) Amendment Rules, 2024, Gazette of India (Feb. 21, 2024).
- Ministry of Health and Family Welfare, Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021) and Rules, 2022.
- Ministry of Health and Family Welfare, Assisted Reproductive Technology (Regulation) Act, 2021 (Act No. 42 of 2021).
- National ART and Surrogacy Board, FAQs on Surrogacy (Regulation) Act, 2021 (2024).
- Baby Manji Yamada v. Union of India, (2009) 13 SCC 518 (Supreme Court of India).
- Devika Biswas v. Union of India, (2016) 10 SCC 726 (Supreme Court of India).