Surrogacy Law in India: Rights & Limitations | 17 Nov 2025

Source: TH

Why in News?

The Supreme Court has agreed to examine whether the ban on using surrogacy for a second child under the  Surrogacy (Regulation) Act, 2021, violates the constitutional right to reproductive autonomy, particularly in cases of secondary infertility.

Why are Limitations Under India’s Surrogacy Law Being Legally Challenged?

• Surrogacy Act, 2021 in Question: Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 prohibits couples from opting for surrogacy if they already have a child—biological, adopted, or through surrogacy—except in cases where the existing child is affected by a disability, life-threatening condition, or an incurable illness.
  • Couples with secondary infertility argue that this restriction denies them surrogacy access and violates their constitutional rights to reproductive autonomy.
• Arguments by Petitioners: Secondary infertility, though less discussed, is emotionally and medically distressing.
  • Surrogacy should not be denied when there is no national one-child policy, and adoption laws already allow for second or third children (e.g., Hindu Adoption and Maintenance Act, 1956, Juvenile Justice Act, 2015).
  • The ban amounts to state overreach into reproductive autonomy, violating Article 21 (right to life and personal liberty).
• Government’s Stand:
  • Surrogacy Not a Fundamental Right: Surrogacy involves the use of another woman's womb. The Constitution does not recognise a right over another individual's body. Surrogacy is a statutory right, not a constitutional one.
  • Restriction is Reasonable and Needed: Prevents unnecessary surrogacy when a couple already has a healthy, living child. Protects surrogate mothers from undergoing pregnancy in non-essential cases.
  • Well-Balanced Provision: The proviso allows exceptions for serious medical conditions, ensuring genuine need is addressed and surrogacy is not misused.
• Supreme Court’s Observations: The Court observed that the restriction appears “reasonable,” noting concerns related to India’s growing population.
  • It nonetheless emphasized that a detailed examination is required to determine whether the provision infringes reproductive freedom, bodily autonomy, and the right to privacy.

What are the Key Legal Frameworks Related to Surrogacy in India? 

• Surrogacy (Regulation) Act, 2021:
  • Permissibility: Surrogacy allowed only for altruistic purposes and for couples with proven infertility; commercial surrogacy is fully prohibited.
  • Eligibility Requirements: Only a legally married Indian man (26–55) and woman (25–50) or a widow/divorcee (35–45) can seek surrogacy, and they must not have any existing biological, adopted, or surrogate child.
  • Criteria For Surrogate Mother: Must be a close relative, married, have at least one child, be 25–35 years old, and act as a surrogate only once.
  • Legal Status at Birth: The child is legally the biological child of the intending couple; abortion requires consent and must follow the MTP Act.
  • Rule 7 (Donor Egg Restriction): Rule 7 bans donor eggs, but the Supreme Court has stayed its operation in a specific case involving Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome.
• Amendment to Surrogacy (Regulation) Rules, 2022: It allowed surrogacy with donor gametes if either spouse in the intending couple is certified by the District Medical Board to require donor gametes due to a medical condition.
  • This implies that couples still cannot opt for surrogacy if both partners have medical issues.
  • For divorced or widowed women opting for surrogacy, it mandates the use of the woman's own eggs alongside donor sperm. 

What are the Key Challenges in India’s Surrogacy Framework?

• Risk of Exploitation vs. Autonomy: The ban on commercial surrogacy restricts women’s reproductive choices and struggles to balance protection with autonomy.
• Patriarchal Reinforcement: By limiting women’s agency over reproductive labour, the law indirectly upholds patriarchal norms and affects Article 21 rights.
• Emotional Strain in Altruistic Surrogacy: Family-based surrogacy can create emotional pressure, strain relationships, and offer only a limited pool of willing surrogates.
• Lack of Professional Support: Excluding agencies removes structured coordination, financial clarity, and emotional support for both surrogates and intending parents.
• Exclusionary Eligibility Rules: Unmarried individuals, single men, same-sex couples, and partners in live-in relationships are barred, discriminating against diverse family forms.

What Reforms Are Needed to Strengthen India’s Surrogacy Framework?

• Rationalise Eligibility Criteria: The government and legislature should consider revising restrictive provisions—especially concerning secondary infertility, donor gametes, and the exclusion of unmarried, to ensure the law aligns with evolving family structures and constitutional rights.
• Strengthen Safeguards: Rather than prohibitive rules, the focus should shift to robust regulatory mechanisms ensuring informed consent, medical safety, fair compensation for expenses, and protection from exploitation for surrogate mothers.
• Counselling and Support Mechanisms: Mandatory psychological, legal, and medical counselling for intending parents and surrogate mothers can reduce emotional strain, prevent coercion, and help all parties navigate complex decisions.
• Institutional Mechanisms: District and National Surrogacy Boards should be empowered with better monitoring tools, grievance-redress mechanisms, and transparent processes to regulate surrogacy clinics, agencies, and medical boards.
• Rights-Based Policy Framework: Future reforms must uphold Article 21 rights, respect bodily autonomy, and balance protection with empowerment—ensuring the surrogacy ecosystem remains ethical, inclusive, and in harmony with constitutional values.

Conclusion

As the Supreme Court reassesses the current restrictions, India has an opportunity to refine its surrogacy framework to balance ethical safeguards with reproductive autonomy. A more inclusive, rights-based, and well-regulated system can protect surrogate mothers, support intending parents, and ensure the law remains aligned with evolving social realities and constitutional values.