The Delhi High Court recently said the “surrogacy industry” should not be encouraged in India and that if left unchecked, it could grow into a billion-dollar business.

The court made the observation while hearing a plea by an Indian-origin couple living in Canada, challenging the Centre’s March 14 notification amending the Surrogacy (Regulation) Act to ban donor surrogacy. “You are based in Canada. You cannot run an industry here,” the court said.

What is surrogacy ?

● The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
● In traditional surrogacy the surrogate conceives with her own eggs and the intended father’s sperm. The surrogate is the baby’s biological mother because the father’s sperm fertilizes her egg.
● It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.

Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.

Donor surrogacy/Gestational surrogacy

  • Donor surrogacy is a type of surrogacy where a third-party female carries a pregnancy for intended parents. In gestational surrogacy, the intended mother or a donor provides the egg, and the intended father or a sperm donor provides the sperm. The surrogate mother is impregnated through in vitro fertilization (IVF).
  • A child born from ‘donor gametes’ instead of self gametes “may be rejected or uncared for by a parent who is not biologically related”. The new surrogacy rules only permit self gametes for surrogacy.

Surrogacy (Regulation) Act,2021

The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.


Regulation of surrogacy

  • It prohibits commercial surrogacy, but allows altruistic surrogacy.
  • Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
  • Commercial surrogacy includes surrogacy, or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted.

(i) for intending couples who suffer from proven infertility.
(ii) altruistic.
(iii) not for commercial purposes.
(iv) not for producing children for sale, prostitution or other forms of exploitation.
(v) for any condition or disease specified through regulations.

Eligibility criteria for intending couple:

  • The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

A certificate of essentiality will be issued upon fulfilment of the following conditions:

  • a certificate of proven infertility of one or both members of the intending couple from a District Medical Board
  • an order of parentage and custody of the surrogate child passed by a Magistrate’s court
  • Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

Eligibility criteria for surrogate mother:

(i) a close relative of the intending couple.
(ii) a married woman having a child of her own.
(iii) 25 to 35 years old.
(iv) a surrogate only once in her lifetime.
(v) possess a certificate of medical and psychological fitness for surrogacy.

Further, the surrogate mother cannot provide her own gametes for surrogacy.

Parentage and abortion of surrogate child:

(i) A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
(ii) An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.

Offences and penalties

  • undertaking or advertising commercial surrogacy.
  • exploiting the surrogate mother.
  • abandoning, exploiting or disowning a surrogate child.
  • selling or importing human embryo or gametes for surrogacy.
  • The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.

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