Legal Framework for Surrogacy Tightened: New Provisions in ART & Surrogacy Acts
- ByAdmin --
- 14 May 2025 --
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The legal landscape for surrogacy in India has undergone significant tightening with the implementation of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. These two legislations aim to regulate the rapidly growing assisted reproduction industry, curb unethical practices, and protect the rights of all parties involved — particularly surrogate mothers and intended parents.
The government, recognizing emerging concerns over exploitation and commercialization of surrogacy, has introduced stricter provisions and eligibility criteria under these Acts to ensure ethical practices.
Overview of the Legal Framework
- The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act):
Regulates ART clinics and banks, ensuring safe and ethical ART services, including procedures like IVF and sperm/egg donation.
- The Surrogacy (Regulation) Act, 2021:
Specifically governs surrogacy arrangements, prohibiting commercial surrogacy and allowing only altruistic surrogacy under strict conditions.
- Article 21 of the Constitution of India:
Protects the right to life and personal dignity, which courts have interpreted to include the right to reproductive autonomy, but within legal boundaries set for public welfare.
Key New Provisions Tightening Surrogacy Regulation
- Only Altruistic Surrogacy Permitted:
- Commercial surrogacy — involving any form of payment or reward beyond medical expenses and insurance coverage — is strictly prohibited.
- Altruistic surrogacy ensures that the surrogate is motivated by goodwill, not financial gain.
- Eligibility Criteria for Intended Couples:
- Only Indian heterosexual married couples are eligible (minimum 3 years of marriage).
- Age limits: 23–50 years for women and 26–55 years for men.
- Medical proof of infertility is mandatory.
- Eligibility Criteria for Surrogate Mothers:
- Only close relatives (defined as "willing women" related genetically or through marriage) can act as surrogates.
- Age limits: 25–35 years.
- Must have at least one biological child of her own.
- Can only be a surrogate once in her lifetime.
- Ban on Single, Same-Sex Couples, and Foreigners:
- Single persons, live-in couples, and members of the LGBTQIA+ community are barred from commissioning surrogacy.
- Foreign nationals are also disallowed, reflecting India’s earlier concerns about “surrogacy tourism.”
- Single persons, live-in couples, and members of the LGBTQIA+ community are barred from commissioning surrogacy.
- Registration of ART Clinics and Surrogacy Clinics:
- Mandatory registration of all clinics and banks with the National and State ART and Surrogacy Boards.
- Clinics must adhere to prescribed standards and are subject to inspections and penalties for violations.
- Mandatory registration of all clinics and banks with the National and State ART and Surrogacy Boards.
- Insurance Requirement:
- Intended parents must provide a 36-month insurance cover for the surrogate mother, covering postpartum complications.
- Intended parents must provide a 36-month insurance cover for the surrogate mother, covering postpartum complications.
- Penalties for Violations:
- Engaging in commercial surrogacy or running unregistered ART or surrogacy clinics can attract fines ranging from ₹5 lakh to ₹10 lakh and imprisonment up to 10 years.
Challenges and Criticism
- Access Issues:
Critics argue that the strict eligibility rules exclude many deserving individuals, such as single parents or LGBTQIA+ individuals, from the surrogacy process.
- Potential for Underground Markets:
Some experts warn that stringent regulations might push commercial surrogacy underground, leading to further exploitation rather than eliminating it.
- Ambiguity Around ‘Close Relative’:
The law does not clearly define what degree of relation qualifies as a close relative, leading to practical difficulties.
- Judicial Interventions:
Recently, courts have been approached to seek clarity or exceptions, citing the constitutional right to equality (Article 14) and reproductive autonomy (Article 21).
The Role of Regulatory Authorities
- National ART and Surrogacy Board:
Oversees implementation, sets minimum standards, and advises the government on related matters.
- State Boards and Appropriate Authorities:
Handle local registration, enforcement, monitoring, and grievance redressal mechanisms.
Conclusion
The tightening of India's surrogacy laws reflects a strong regulatory approach to protecting vulnerable women and ensuring ethical standards in assisted reproduction. While the ART Act, 2021 and Surrogacy (Regulation) Act, 2021 represent a major step toward regulating the sector, balancing individual rights, social norms, and healthcare ethics remains an ongoing challenge. As legal battles and calls for more inclusive reforms emerge, the future will likely see further evolution of India’s surrogacy framework.
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