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.