Anyone who looked at India for surrogacy ten years ago would give you a completely different story compared to what’s on the ground today. India used to be known as cheap, fast and hassle-free, compared to the West. That India, for the purpose of this discussion, is now history.
The Surrogacy (Regulation) Act, 2021 has ripped up the rulebook on the previous model, and today, if you are thinking about surrogacy laws in India, these are the parameters you are working under – and they’re largely unrecognisable.
You can’t pay a surrogate anymore
This is where most newcomers falter. You may not be able to pay a surrogate in India for her time and the risk involved in carrying a baby to term.
- Surrogacy will now involve payment of medical expenses, insurance and pregnancy related expenses incurred by the surrogate.
- Anything over and above that would be construed as commercial surrogacy, which is now illegal.
- Understandably, lawmakers felt compelled to introduce the ban to avoid women, from often disadvantaged sections of society, from being viewed as paid reproductive service providers rather than individuals making a life choice.
- But, it raises the nagging question: does the ban on payment not, instead, make the system less transparent and more open to other kinds of coercion and exploitation?
- Legal experts are yet to agree on this!
Not everyone gets to be a parent through this
Many aspiring parents face a dead-end when they stumble upon this clause among the other surrogacy laws in India.
- Only married heterosexual couples with infertility (which needs to be documented), widows and divorced women (of a certain age and without kids) can be listed as commissioning parents.
- And that is just about that!
- Single men, unmarried couples, live-in partners, LGBTQ+ individuals? Excluded, no exceptions written into the law.
- Lawyers keep pointing out how uncomfortably this sits next to constitutional promises around equality and personal freedom, especially considering how the Supreme Court has ruled on reproductive rights elsewhere.
- Something will probably have to give at some point.
- Just don’t expect it to happen quickly.
Your surrogate has to be family, basically
And this is the part that ambushes almost every hopeful parent. Ignore your agency-swapped surrogate concept from across the globe.
- The surrogacy laws in India dictate that the surrogate has to be a near relative to the prospective parents. Except the Act does not define “near relative”.
- That gap has left clinics and officials interpreting it however they see fit, which helps nobody.
- She also needs to already have a biological child, has to be married, and can only be a surrogate once in her lifetime.
- Insurance is mandatory throughout.
- All of it sounds protective until you sit with the reality of asking your sister or cousin to carry your child for you.
- That’s not a small ask, emotionally.
Surrogacy laws in India cleaned up a lot of the mess from the unregulated years, and that matters. But the eligibility rules leave plenty of people without any legal path forward, and constitutional challenges to those restrictions are still making their way through the courts. Nothing about this feels locked in place. Anyone seriously considering surrogacy here should talk to a lawyer who actually understands this space before making any moves, because the rules are specific, sometimes maddening, and still shifting under everyone’s feet.
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