A Complete Guide to Altruistic Gestational Surrogacy in India: Laws, Process, and Eligibility

Introduction

India emerged as ‘surrogacy’ hub for couples, when unethical practices regarding exploitation of surrogate mothers, abandonment of children, and import of human embryos and gametes were reported and hence the Law Commission of India recommended enacting legislation to prohibit commercial surrogacy. Accordingly, the parliament enacted beneficial legislation for all three components of surrogacy, namely the surrogate child, the surrogate mother, and the intending couple.

“The Surrogacy (Regulation) Act, 2021” is an enactment to regulate surrogacy services, prohibit commercial surrogacy, and promote altruistic surrogacy.

‘Surrogacy’ is defined in Section 2 (zd) of The Surrogacy (Regulation) Act, 2021 - means a practice whereby one woman bears and gives birth to a child for an intending couple to hand over such a child to the intending couple after the birth.

Difference between Gestational surrogacy and Traditional surrogacy

In gestational surrogacy both the gametes used, are either of the intending couple, or 1 donor gamete and 1 from the member of the intending couple; however, the gamete of the surrogate mother is not used and hence the surrogate mother is not the biological mother and is not genetically related to the surrogate child. However, in traditional surrogacy, ‘eggs’ of the surrogate mother are used, making her the biological mother of the surrogate child. This is prohibited as per the prevailing laws in India.

Growing demand for gestational surrogacy as a family-building option

Due to lifestyle disorders, there has been a rise in infertility cases. Infertility has been a stigma for women for ages, and considering the same, the parliament enacted a beneficial legislation “The Surrogacy (Regulation) Act, 2021 empowering the infertile couple to develop families and to save the women from social taboo. The objective of the said act is to allow ethical altruistic surrogacy for intending couples who are legally married, and the intending woman is between the age of 23- 50 years, and the intending father is between the ages of 26-55 years. Gestational surrogacy is only permitted in India to avoid emotional claims of the surrogate mother over the surrogate child.

What is Gestational Surrogacy

Gestational surrogacy is a process where embryos formed from the egg and sperm of the commissioning couple or using donor oocytes are implanted through IVF (In Vitro Fertilization) into the surrogate mother, who carries the pregnancy and, upon birth of the child, hands over the baby to the commissioning couple. In gestational surrogacy, the surrogate mother is not genetically related to the surrogate child, as the surrogate mother does not provide her own gametes. As per The Surrogacy (Regulation) Amendment Rules 2024 para “1(d)(i) reads – couple undergoing surrogacy must have both gamete from the intending couple; However, in case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete then surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy mush have alteast one gamete from the intending couple.” Thus, the genetic material used for the formation of embryos, in a surrogacy procedure, is of the intending couple.

The Surrogacy Process

Commercial & fanciful surrogacy is not permitted in India, Intending couples eligible to undergo surrogacy procedure should fulfill the following –

• A female should be between the ages of 23 to 50 years;
• Males should be between the ages of 26 to 55 years;
• The intending couple have not had any surviving children, biologically or through adoption or surrogacy, previously.

Provided that if the intending couple has a child who is mentally or physically challenged or suffers from life life-threatening disorder or fatal illness with no permanent cure, and is approved by the appropriate authority with a due medical certificate from the District Medical Board, they can avail surrogacy procedure;

So, first and foremost, the couple has to obtain a Medical Indication certificate from the District Medical Board. Medical Indication indicating gestational surrogacy should fall within the parameters detailed in Rule 14 of The Surrogacy (Regulations) Rules, 2022.

A surrogate eligible to be a surrogate mother should fulfill the following –

• An ever-married woman having a child of her own;
• Between the ages of 25 to 35 years;
• Can be a surrogate mother, but will not donate her egg or oocyte.

The intending couple will get the medical / psychological, examination of the surrogate mother, carried out at the clinic, and obtain the fitness certificate. The intending couple and the surrogate mother will then enter into a contract in (Form 2). Intending couple will also obtain Insurance (both Health & Life) for the surrogate mother. The intending couple and the surrogate mother will thereafter apply to the court of the magistrate to obtain an order concerning the parentage and custody of the surrogate child to be born through the surrogacy procedure.

Having fulfilled the above the intending couple and the surrogate mother will approach the Appropriate Authority with their application seeking Eligibility Certificates. Once the couple / surrogate mother obtains the (i) Certificate of Medical Indication; (ii) Order concerning the parentage and custody of the of the child to be born through surrogacy; (iii) insurance coverage for 36 months covering postpartum delivery from an insurance company recognized by IRDA; (iv) Eligibility Certificate; (v) the intending couple subject to fulfillment of the above certificates, will then be entitled for issuance of Essentiality Certificate. Only upon fulfillment of the above will the Surrogacy clinic start the surrogacy procedure.

Legal Aspects of Gestational Surrogacy

• Only altruistic surrogacy is permitted under law, and hence there can be no commercialization of surrogacy services or procedures or their component services or component procedures;
• Selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, is prohibited; except medical expenses, such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.
• Written informed consent (in Form 2) of the surrogate mother is mandatory to start eh surrogacy procedure.
• Surrogate mother shall have the option to withdraw her consent for surrogacy before the implantation of a human embryo in her womb.
• The intending couple or intending woman shall not abandon the child born out of a surrogacy procedure.
• A child born out of a surrogacy procedure shall be deemed to be a biological child of the intending couple / intending woman, and the child shall be entitled to all the rights and privileges available to a natural child.

The Benefits of Gestational Surrogacy

• Gestational surrogacy is an ethical means for infertile couples to build their families.
• Both the intending parents / intending woman and the surrogate mother can avail surrogacy procedure only once in a lifetime.
• Gestational surrogacy provides a biological connection between the intending parents and the child.
• The child is not genetically related to the surrogate mother.
• Gestational surrogacy ensures the responsibilities of all parties and prevents exploitation; rather, it promotes the well-being of all the components of the surrogacy procedure.