Surrogacy, once a booming and controversial industry in India, has been subject to strict regulations under the Surrogacy (Regulation) Act, 2021. In 2024, the Indian government introduced important changes through the Surrogacy (Regulation) Amendment Rules, 2024. These new rules aim to address the practical and ethical concerns raised by the original legislation. This article discusses the evolution of India’s surrogacy law, compares the 2021 and 2024 provisions, and explains the process of surrogacy under the current framework.

Understanding Surrogacy

Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intending parents). It can be:

1. Altruistic Surrogacy: No monetary compensation is given to the surrogate mother, except for medical expenses and insurance.

2. Commercial Surrogacy: Involves payment to the surrogate beyond medical costs (this is banned in India).

Key Features Of The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was enacted to regulate surrogacy practices in India and prevent exploitation of women. It introduced strict guidelines to ensure ethical surrogacy arrangements.

Altruistic Surrogacy Only: The Act permits only altruistic surrogacy, meaning the surrogate mother can be compensated only for medical expenses and insurance; no commercial surrogacy involving monetary profit is allowed.

Eligibility Restrictions: Surrogacy is restricted to Indian heterosexual married couples, where the wife is aged between 23 and 50 years and the husband between 26 and 55 years. Additionally, widowed or divorced women between the ages of 35 and 45 years are also permitted to seek surrogacy.

Ban on Commercial Surrogacy: Commercial surrogacy, where surrogates are paid beyond their medical needs, is strictly prohibited under the Act to prevent exploitation and commodification of women's bodies.

Surrogate Mother Requirements: The surrogate mother must be a married woman aged 25 to 35 years, with at least one biological child of her own. She can act as a surrogate only once in her lifetime, ensuring that surrogacy is not treated as a recurring livelihood.

Medical Necessity: Surrogacy is allowed only if the intending woman is medically certified as unable to conceive naturally, thus ensuring that surrogacy remains a last resort and not a matter of convenience.

Prohibition for Certain Groups: The Act explicitly prohibits surrogacy for same-sex couples, live-in partners, foreigners, and single (never-married) individuals, limiting the availability of surrogacy to a narrow group of intending parents.

Certification by District Medical Board: A strict certification process is mandated, requiring intending couples to obtain approval from a District Medical Board to validate the medical necessity and eligibility before proceeding with surrogacy.

What Changed with the Surrogacy (Regulation) Amendment Rules, 2024?

The Surrogacy (Regulation) Amendment Rules, 2024, introduced important changes to make the surrogacy process more practical and accessible for intending parents, while maintaining ethical safeguards.

Use of Donor Gametes Permitted: Under the 2021 law, both the egg and sperm had to come from the intending couple, and the use of donor gametes was strictly prohibited. However, the 2024 amendment now allows the use of one donor gamete (either egg or sperm) if a District Medical Board certifies a medical necessity. This change offers critical support to couples where one partner is medically unable to produce viable gametes.

Medical Certification Expanded: While certification from a District Medical Board remains mandatory, the 2024 rules have expanded the grounds for approval. Medical conditions like Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome, where a woman is born without a uterus, are now recognized as valid reasons for permitting the use of donor gametes in surrogacy arrangements.

Eligibility of Single Women: The amendment has not made significant changes regarding single women's eligibility. Only widowed or divorced women between the ages of 35 and 45 are allowed to seek surrogacy. Never-married single women remain excluded, a limitation that is currently being challenged in courts.

Child’s Genetic Link: The 2024 rules emphasize that at least one of the intending parents must have a biological connection to the child. This requirement ensures the maintenance of a genetic link between the intending family and the child born through surrogacy.

Detailed Process of Surrogacy under Current Law

The process of surrogacy under the current legal framework in India involves several strict steps to ensure compliance with the Surrogacy (Regulation) Act and its 2024 Amendments.

1. Eligibility Check: First, intending parents must confirm that they meet the required age and marital status conditions. They must also obtain proper medical proof of infertility or medical incapacity to conceive naturally.

2. Medical Board Certification: The intending parents must approach the District Medical Board to obtain a certificate of medical necessity for surrogacy. In cases where required, the Board may also authorize the use of a donor gamete under medical grounds.

3. Selection of Surrogate Mother: The surrogate mother must be carefully selected according to the law. She must be a married woman aged between 25 and 35 years, have at least one biological child of her own, and be both medically and psychologically fit. No financial payment is allowed except for covering medical expenses and insurance.

4. Legal Agreement: A formal surrogacy agreement must be signed between the intending parents and the surrogate. This agreement clearly defines responsibilities, outlines medical care arrangements, and ensures the legal transfer of the child to the intending parents after birth.

5. Medical Procedure: The IVF (In Vitro Fertilization) procedure is conducted using the intending parents' or a permitted donor’s gamete. Embryo transfer and pregnancy management must take place in a registered ART (Assisted Reproductive Technology) clinic.

6. Post-Birth Formalities: After the child’s birth, the intending parents are legally recognized as the child’s parents. A birth certificate is issued in their names, completing the legal process.

7. Monitoring: Surrogacy clinics and agencies are under strict monitoring to ensure that no commercial dealings or illegal activities take place during the surrogacy process.

The Surrogacy (Regulation) Amendment Rules, 2024, represent an important step forward in making surrogacy more compassionate and accessible for intending parents facing genuine medical challenges. However, critics argue that the law continues to exclude many deserving individuals, including unmarried single women and LGBTQIA+ persons, from building families through surrogacy. Therefore, further legal developments and reforms in this sensitive area are expected.