Surrogacy in India: Who Is Eligible Under the 2021 Act

Two categories of people, and no others. The Surrogacy (Regulation) Act, 2021 (Act 47 of 2021), in force since 25 January 2022, permits surrogacy for an “intending couple” — defined in Section 2(1)(r) as a couple who have a medical indication necessitating gestational surrogacy and intend to become parents through it — or for an “intending woman”, defined in Section 2(1)(s) as an Indian woman who is a widow or divorcee between the ages of 35 and 45.

Section 4(iii)(c) sets the conditions for the couple's eligibility certificate: they must be married; the woman must be between 23 and 50 and the man between 26 and 55 on the day of certification; and they must not have had any surviving child, biologically, through adoption or through an earlier surrogacy. That last condition has one statutory exception, approved on a District Medical Board certificate, where an existing child is mentally or physically challenged or has a life-threatening disorder or fatal illness with no permanent cure.

• Intending couple: married, woman 23–50 and man 26–55 on the day of certification (s. 4(iii)(c)(I)).
• Intending woman: an Indian widow or divorcee aged 35–45 (s. 2(1)(s)).
• A medical indication necessitating gestational surrogacy, certified by a District Medical Board (s. 4(iii)(a)(I)).
• No surviving child, subject to the exception above (s. 4(iii)(c)(II)).

What counts as a medical indication is not left to the clinic either. Rule 14 of the Surrogacy (Regulation) Rules, 2022, as reproduced by the Supreme Court in its judgment of 9 October 2025, lists an absent, missing or abnormal uterus or one surgically removed; recurrent implantation failure after multiple IVF or ICSI attempts; multiple pregnancy losses from an unexplained medical reason; and any illness that makes carrying a pregnancy to viability impossible or life-threatening.

Payment of any kind, and the trade around it. Section 2(1)(b) defines altruistic surrogacy as surrogacy in which “no charges, expenses, fees, remuneration or monetary incentive of whatever nature” go to the surrogate mother, her dependants or her representative — with two exceptions only: the medical and other prescribed expenses incurred on her, and her insurance coverage.

Section 38 goes further than that definition, prohibiting the commercial apparatus and not only the payment.

• Permitted: medical and other prescribed expenses incurred on the surrogate, and her insurance cover (s. 2(1)(b)).
• Not permitted: any fee, reward or monetary incentive to her, her dependants or her representative.
• Not permitted: an agency, racket or organised group empanelling or selecting surrogate mothers, or brokers and intermediaries arranging them (s. 38(1)(a)).
• Not permitted: advertising commercial surrogacy by any means (s. 38(1)(b)), or selling or importing human embryos or gametes for surrogacy (s. 38(1)(e) and (f)).

The surrogate's insurance is a statutory line item, not an optional extra — one of the few fertility costs Indian legislation fixes directly. Our article on IVF cost and insurance in India covers the rest.

A willing woman who meets the conditions in Section 4(iii)(b) — and, contrary to a great deal of material still circulating, she does not have to be a relative. The “close relative” requirement belonged to the 2019 Bill. The Act as passed says at Section 4(iii)(b)(II) that “a willing woman shall act as a surrogate mother”, with a proviso that the intending couple or intending woman shall approach the appropriate authority together with her.

• An ever-married woman having a child of her own, aged 25 to 35 on the day of implantation.
• A willing woman, presented to the appropriate authority by the intending couple or intending woman.
• She may not act as a surrogate mother by providing her own gametes.
• She may act as a surrogate mother only once in her lifetime; the number of attempts is left to the Rules.
• She must hold a certificate of medical and psychological fitness from a registered medical practitioner.

The genetic condition is structural. Section 2(1)(zg) defines the surrogate mother as a woman who bears a child genetically related to the intending couple or intending woman, and the Explanation to Section 4(ii)(a) defines gestational surrogacy as one in which the child is not genetically related to the surrogate. Traditional surrogacy, using the surrogate's own egg, falls outside what the Act permits.

Three, all from the appropriate authority appointed under Section 35, and none of them issued by the clinic. Under Section 4(iii) no surrogacy procedure may be conducted or even initiated unless the person in charge of the clinic is satisfied, for reasons recorded in writing, that all three exist.

• A certificate of essentiality for the intending couple (s. 4(iii)(a)).
• An eligibility certificate for the surrogate mother (s. 4(iii)(b)).
• A separate eligibility certificate for the intending couple (s. 4(iii)(c)).

The certificate of essentiality pulls in three further documents. Section 4(iii)(a) requires a District Medical Board certificate of the medical indication; an order on the parentage and custody of the child to be born, passed by a Magistrate of the first class or above on an application by the intending couple or woman and the surrogate mother, which becomes the birth affidavit once the child is born; and insurance coverage for the surrogate mother for 36 months covering postpartum delivery complications, from an insurer recognised by the Insurance Regulatory and Development Authority.

The Act fixes the 36-month period but leaves the amount to the Rules, so it is not a figure a clinic sets. Private agreements sit alongside these statutory documents rather than replacing them, a distinction our article on legal aspects of fertility agreements covers.

They were passed together, commenced on the same day, and are routinely conflated. The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) regulates IVF and other ART generally; the Surrogacy Act regulates surrogacy specifically. They share institutions: the National Assisted Reproductive Technology and Surrogacy Board is constituted under Section 15 of the Surrogacy Act and serves both, and the National Registry is established under Section 9 of the ART Act for the purposes of both.

Their eligibility rules are not the same, and that is where the confusion does damage. Section 21(g) of the ART Act allows clinics to provide ART services to a woman above 21 and below 50, and to a man above 21 and below 55; Section 2(1)(u) defines “woman” for that Act as any woman above 21 who approaches a clinic or bank, so ART is available to a woman on her own as well as to an infertile married couple. Surrogacy is not: it is open only to a married intending couple or to a widow or divorcee aged 35 to 45, within narrower age bands. Being eligible for IVF does not make a person eligible for surrogacy.

The ART Act is also the source of the consent and clinic registration duties that apply to the IVF stage of a gestational surrogacy — see what the ART Act requires on consent.

Two things materially, and one large question is still open. On donor gametes: an amendment notified as G.S.R. 179(E) on 14 March 2023 substituted paragraph 1(d) of Form 2 to require both gametes from the intending couple and bar donor gametes outright. In an order of 18 October 2023 in the same proceedings the Supreme Court found that amendment prima facie contrary to what the Act intends, and the Union then replaced it. The Surrogacy (Regulation) Amendment Rules, 2024, notified on 21 February 2024 as G.S.R. 119(E), now allow surrogacy using a donor gamete where a District Medical Board certifies that either the husband or the wife has a medical condition necessitating it, subject to the condition that the child must have at least one gamete from the intending couple. The same paragraph requires a single woman — widow or divorcee — to use her own eggs and donor sperm.

On age: in Arun Muthuvel v Union of India, 2025 INSC 1209, decided on 9 October 2025, the Supreme Court held that the age restriction in Section 4(iii)(c)(I) does not operate retrospectively. A couple who began the process before 25 January 2022 and had already created and frozen embryos is not to be refused certification for having crossed the age limit since. The Court said expressly that it was not deciding whether the age limits are valid, only whether they applied to those couples, and sent similarly placed couples to their jurisdictional High Court. The Union's review petitions were dismissed on 19 May 2026.

What is still unsettled is the challenge to the eligibility criteria themselves. When the 2024 amendment was notified, petitions against provisions of both Acts — including petitions by single unmarried women seeking the benefit of the Act — were still before the Supreme Court, and we have found no judgment deciding them. High Courts continue to decide individual cases, and their reasoning does not always transfer: Sathi T v Union of India (Kerala High Court, 21 May 2026) read the ART Act's age limits as attaching to the individual undergoing the procedure rather than to the couple as a unit, which does not move the surrogacy bands.

Dates therefore matter when reading around this topic. A summary written before 21 February 2024 is out of date on donor gametes, and one written from the 2019 Bill rather than the 2021 Act will wrongly say the surrogate must be a close relative.

Tell you whether you qualify. This describes what the statute and the notified Rules require. It is not advice on an individual application and cannot be, because eligibility here is decided by an appropriate authority on certificates, with a Magistrate's order forming part of the file.

• Provisions of both Acts are under challenge and interpretations are developing.
• State-level appropriate authorities administer the certification, and practice varies.
• Surrogacy is one route among several, and often not the first one indicated.
• A specific situation needs a lawyer familiar with Indian reproductive law.

Where a medical indication under Rule 14 is absent, the statutory route is not open, whatever a clinic is willing to arrange — and for many people the honest answer is further testing, a simpler treatment, or a different route to parenthood. Our article on when adoption or surrogacy becomes an option covers that, and our guide to choosing a clinic in India covers what a registered centre should be able to show you.

• Consent in IVF: What the ART Act Requires in India
• When Adoption or Surrogacy Becomes an Option
• IVF Cost and Insurance in India: What the Law Actually Says
• Legal Aspects of Fertility Agreements
• Choosing an IVF Clinic in India: What Actually Matters