Types of Surrogacy Recognised Under Indian Law

For individuals considering building a family through surrogacy in India, understanding the specific types of surrogacy legally permitted is paramount. The comprehensive guide to Surrogacy in India: Complete Guide to Process, Laws & Costs on Surrogacy.net.in begins by clarifying the framework established by the Surrogacy (Regulation) Act, 2021, and its subsequent amendments. This legal landscape strictly defines who can opt for surrogacy and the specific modalities that are legally recognized, ensuring ethical practices and protection for all parties involved.

Gestational Surrogacy Only: Traditional Surrogacy Prohibited

Under Indian law, only gestational surrogacy is permitted. This distinction is fundamental: in gestational surrogacy, the surrogate mother carries a pregnancy created using the gametes (eggs and sperm) of the intending parents or, in specific cases, donor gametes, where the embryo is transferred to her uterus. The surrogate mother has no genetic link to the child she carries.

Conversely, traditional surrogacy, also known as genetic or straight surrogacy, is explicitly prohibited. In traditional surrogacy, the surrogate mother's own egg is fertilised with the sperm of the intending father or a donor. This means the surrogate has a genetic connection to the child, which is not allowed under the Surrogacy (Regulation) Act, 2021 (in force 25 Jan 2022) to prevent potential disputes over parentage and ensure the well-being of the child and the surrogate. The law firmly establishes that the child born through surrogacy must be genetically related to at least one of the intending parents, or to both, if not using donor gametes, subject to the conditions of the 2024 amendment (Ministry of Health and Family Welfare, Government of India, notified March 2024, accessed July 2026).

Altruistic vs. Commercial Surrogacy: The Legal Distinction

Another crucial distinction in India is between altruistic and commercial surrogacy. The Surrogacy (Regulation) Act, 2021, unequivocally bans commercial surrogacy across the country.

• Altruistic Surrogacy: This is the only legally permitted form. In altruistic surrogacy, the surrogate mother receives no monetary compensation, reward, or remuneration other than the medical expenses and insurance coverage related to the pregnancy. Her motivation is purely altruistic, often driven by a familial or emotional connection to the intending parents. The intending parents are legally obligated to cover all medical expenses, diagnostic tests, health supplements, and a mandatory insurance cover for the surrogate mother for a period of 36 months post-delivery, as stipulated by the Surrogacy (Regulation) Rules, 2022. This comprehensive care obligation extends to any post-partum complications or health issues arising from the surrogacy procedure.
• Commercial Surrogacy: This practice, involving payment to the surrogate mother beyond her reasonable medical expenses and insurance, is strictly prohibited. The intention behind this ban is to prevent the exploitation of women and to uphold the dignity of the surrogacy process. Any engagement in commercial surrogacy activities can lead to severe penalties under the Surrogacy (Regulation) Act, 2021.

⚠️ Updated March 2024: Donor Gametes Now Permitted in Specific Medical Cases

A significant amendment to the Surrogacy (Regulation) Rules, 2022, notified in March 2024 by the Ministry of Health and Family Welfare, Government of India, addresses the use of donor gametes. Initially, the law mandated that at least one intending parent's gamete must be used for surrogacy, effectively prohibiting donor gametes for both parents.

The 2024 amendment now permits the use of donor gametes in specific medical conditions, as certified by a District Medical Board. This change primarily benefits intending couples where both partners face medical conditions preventing them from contributing their own gametes, such as azoospermia (absence of sperm) for the male partner and ovarian failure for the female partner (Press Information Bureau, Government of India, 14 March 2024, accessed July 2026). This crucial update provides a pathway for a broader range of eligible intending parents to pursue altruistic gestational surrogacy under Indian law.

The Legal Framework for Ensuring Compliance

To ensure that the surrogacy process adheres strictly to the legally recognised types, several preliminary steps are mandatory. These include a thorough medical evaluation of both the intending parents and the potential surrogate mother, leading to the issuance of a 'Certificate of Essentiality' and an 'Eligibility Certificate'. These certificates confirm the medical necessity for surrogacy and verify that all parties meet the stringent criteria laid out in the Surrogacy (Regulation) Act, 2021, and its rules. Such certifications are integral to preventing prohibited forms of surrogacy and ensuring legal parentage is established for the intending parents, aligning with the altruistic gestational model.

Key Takeaways

• Only gestational surrogacy, where the surrogate has no genetic link to the child, is permitted in India; traditional surrogacy is banned.
• Indian law strictly allows only altruistic surrogacy, prohibiting any commercial payment to the surrogate beyond medical expenses and mandatory 36-month insurance.
• A significant 2024 amendment now permits the use of donor gametes for both intending parents in specific, medically certified cases.
• Comprehensive medical evaluation and eligibility certificates are mandatory to ensure strict adherence to legal provisions and the altruistic gestational model.