Surrogacy (Regulation) Act, 2021

Surrogacy (Regulation) Act, 2021
  • Context: 

  • The Supreme Court is currently examining the constitutionality of Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 

  • The provision bans married couples who already have a child (including those facing secondary infertility) from using surrogacy to have a second child.  

  • The government supports this provision, arguing that surrogacy is not a fundamental right and should only be availed when all other options have failed 

  • Types of Surrogacy 

  • The law primarily distinguishes between two types of surrogacy 

  • Altruistic Surrogacy:  

  • This is an arrangement where no monetary compensation is given to the surrogate mother, other than medical expenses and insurance coverage.  

  • This is the only form of surrogacy permitted in India. 

  • Commercial Surrogacy:  

  • This involves payment (beyond medical costs) to the surrogate mother.  

  • This is strictly banned in India. 

  • The idea is to prevent the exploitation and commodification of women's bodies 

  • Key Provisions of the Act & Regulation in India: The 2021 Act introduced strict guidelines to regulate surrogacy: 

  • The Act explicitly prohibits commercial surrogacy 

  • Surrogacy is restricted to 

  • Indian heterosexual married couples (wife aged 23-50, husband 26-55) 

  • Widowed or divorced women (aged 35-45) 

  • The Act prohibits surrogacy for same-sex couples, live-in partners, foreigners, and single (never-married) individuals 

  • Eligibility for Surrogate Mother:  

  • The surrogate must be 

  • A married woman aged 25-35 

  • Have at least one biological child of her own 

  • She can act as a surrogate only once in her lifetime 

  • Surrogacy is permitted only when a District Medical Board certifies that the intending woman is medically unable to conceive 

  • Restriction on Donor Gametes (Original 2021 Act):  

  • The 2021 law originally prohibited the use of any donor gametes; both egg and sperm had to come from the intending couple 

  • Surrogacy (Regulation) Amendment Rules, 2024:  

  • This amendment introduced a significant change. 

  • It now permits the use of one donor gamete (either egg or sperm) if a District Medical Board certifies a medical necessity.  

  • However, it maintains that at least one of the intending parents must have a biological connection to the child.  

  • Regulations of Surrogacy in India: 

  • No surrogacy clinic can operate without registration 

  • Regulatory Bodies includes, National Assisted Reproductive Technology & Surrogacy Board and State ART & Surrogacy Boards (at state level) 

  • Penalties:  

  • Commercial surrogacy, exploitation, or sex selection → imprisonment up to 10 years + fine up to ₹10 lakh 

  • All offences are cognizable, non-bailable, and non-compoundable.