Surrogacy offers hope for those wishing to start a family. But, for foreigners in India, understanding the law can be tricky. This article looks into the rules and answers: Is surrogacy legal in India for foreigners?

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Please note that as per Surrogacy Regulation Act, 2021, surrogacy in India is not legally allowed for foreigners.  However, overseas citizens of India (OCI) can do it if they fulfil other eligibility requirements. 

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Advancements in surrogacy have opened doors for many. But, there are rules to follow. The new Surrogacy (Regulation) Act aims to make things clearer. It also looks at what society thinks about surrogacy.

Key Takeaways

• The Surrogacy (Regulation) Act of 2021 and the Assisted Reproductive Technology (Regulation) Act of 2021 were introduced to address the legal and ethical concerns surrounding surrogacy in India.
• Commercial surrogacy is banned, and altruistic surrogacy is allowed only for certain eligible individuals and couples.
• Foreign nationals are eligible to avail of surrogacy services in India, but they must meet the requirements set forth in the Act, such as being of Indian origin and not engaging in commercial surrogacy.
• The laws have been criticized for being exclusionary and undermining women’s reproductive autonomy, with advocates calling for a rights-based implementation and regular consultations with stakeholders.
• Ongoing advocacy efforts must focus on non-discriminatory access to assisted reproductive technology services, regardless of marital status, gender identity, or sexual orientation.

Introduction to Surrogacy in India

Infertility is a major problem affecting both men and women. It leads to the search for new ways to have children. Surrogacy has become a common choice due to progress in assisted reproductive techniques.

Definition of Surrogacy

Surrogacy means a woman carries a fetus for others, who will raise the child. The word comes from Latin and means “to substitute.” It’s a growing hope for those Couples dealing with infertility.

Types of Surrogacy: Altruistic and Commercial

There are two main types of surrogacy. Altruistic surrogacy is when the surrogate doesn’t get paid. Commercial surrogacy involves payment. This difference is key in looking at the legal and moral sides of surrogacy.

History of Surrogacy in India

Between 2002 and 2015, commercial surrogacy was legal in India. This period saw a boom in the surrogacy business. It also saw problems like the exploitation of poor women and issues of ethics and legality, known as surrogacy tourism.

Legal Framework for Surrogacy in India

There was a big gap in money and power between those involved in surrogacy, making surrogates and children easy targets for exploitation. This led to a call for laws to protect them. The Indian government passed the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 to tackle these issues.

Surrogacy (Regulation) Act, 2021

The Surrogacy Act outlaws commercial surrogacy in India. It allows surrogacy only if it’s an act of kindness and not for money. It sets rules for who can be a surrogate or parent, when surrogacy is okay, and how clinics must follow certain guidelines.

Assisted Reproductive Technology (Regulation) Act, 2021

The ART Act keeps an eye on clinics that help with reproduction and the technology they use. It also looks into the birth rights of children who are born through these assisted methods.

Eligibility Criteria for Surrogacy in India

The Surrogacy (Regulation) Act, 2021, sets the rules for key players in altruistic gestational surrogacy. This includes the intending couples, intending women, and surrogate mothers.

Requirements for Intending Couples

An “intending couple,” in this context, is an infertile Indian married pair. The wife should be 23-50 years old and the husband 26-55. They shouldn’t have any living children. These rules ensure only those who can’t have kids naturally can opt for surrogacy in India.

Requirements for Intending Women

This Act allows right-minded Indian widows, divorcees, and some married couples abroad to use altruistic surrogacy. This group is called “intending women.” It broadens surrogacy’s reach to include single women and those living abroad.

Requirements for Surrogate Mothers

A “surrogate mother” must be a willing, ever-married woman aged 25-35, having her child. She must be physically and mentally fit, and she cannot get paid except for essential medical costs. These steps aim to protect all surrogate mothers, ensuring they join the process willingly and without pressure.

The Surrogacy (Regulation) Act, 2021, defines strict eligibility for those involved in altruistic surrogacy in India. It aims to balance the interests of intending parents, surrogate mothers, and the children resulting from these arrangements.

Is surrogacy legal in India for foreigners?

Surrogacy Regulation Act, 2021, surrogacy in India is not legally allowed for foreigners.  However, overseas citizens of Idia (OCI) can do it if they fulfil other eligibility requirements. 

The Surrogacy (Regulation) Act, 2021 restricts commercial surrogacy. It’s allowed for altruistic reasons only.

Surrogates can’t get paid for their role, just for medical and insurance needs. The Act states specific criteria for using surrogacy. For instance, the intended parents must be of Indian origin. Also, it should be for altruistic purposes. If the intended mother is a divorcee or widow, this also allows surrogacy.

Restrictions on Commercial Surrogacy

Since 2015, the Surrogacy (Regulation) Act banned commercial surrogacy. Surrogates can get money just for medical expenses and insurance.

Eligibility for Foreign Nationals

Foreign nationals if they are having are Non-resident Indians (NRI) or Overseas citizens of India (OCI) can use India’s surrogacy services. But, they need to follow the Act’s rules. This includes not doing commercial surrogacy.

The Act helps guard against exploiting women, especially those from abroad. They are protected when seeking surrogacy in India.

Ethical and Social Considerations

The surrogacy ethical considerations and surrogacy social considerations around the new Surrogacy (Regulation) Act, 2021 have sparked intense talks. A major issue is the limitation of women’s reproductive autonomy 

. These rules are seen as mainly for straight married couples or single, straight women. This unfortunately leaves out those in the LGBTQI+ community and those not married. Critics say these laws are unfair and narrow-minded.

The ban on compensatory surrogacy is also a big problem. It follows a model that treats women like they can’t make their own decisions. It values their baby-making more than their choices. This may lead to secret, unsafe surrogacy. It could also mean only the rich can afford these services, blocking others out from having children.

One more big worry is the risk of exploitation and coercion for women acting as surrogates. Although the Act is designed to prevent this, it might not be so effective. The super strict rules and the end of paying for surrogacy might lead to messy, hidden surrogacy situations. In these, the rights of surrogates and children could be in danger.

Ethical Considerations	Social Considerations
Women’s reproductive autonomyExploitation and coercion concernsSurrogacy rights	Heteronormative and exclusionary lawsBarriers to accessing ART servicesPotential for pushing surrogacy underground

THE SURROGACY (REGULATION) ACT, 2021, EXPLAINED

A lot of regulations were introduced, impacting many aspects of surrogacy. Glimpse of few of the regulations are marked here below. IF you wish to do surrogacy in India, you need to fulfil these.  We are happy to assist you with legal surrogacy program in India, but if you do not pass this condition, then doing surrogacy outside India is possible with us. 

Important clauses redefining surrogacy are highlighted below.

• Has to be Gestational Surrogacy (surrogate mother is not genetically linked to the child).
• Altruistic Surrogacy (no direct financial benefit to the surrogate mother)
• Registered Surrogacy Clinic only (ART Registered clinics can perform surrogacy).
• Single woman (divorced or widowed), between the age of 35 to 45 years. Genetic link is must. 
• Married Indian female (25 to 50 years) and male (26 to 55 years).
• Couple of Indian origin.
• Couple have not had any healthy surviving child biologically or adoption.
• Insurance for 36 months, for the Surrogate mother for illness or death.
• Have to have Medical indication necessitating gestation surrogacy.
• No sex selection.
• To obtain certificate of essentiality from The Appropriate Authority.
• To obtain certificate of medical indication necessitating gestation surrogacy from District Medical Board.
• Parentage Order passed by First class Magistrate.
• Surrogate Mother to obtain eligibility certificate from The Appropriate Authority.
• Surrogate mother should be between 25 to 35 years.
• Surrogate mother will act as Surrogate only once in her lifetime.
• Medical and psychological fitness for Surrogate mother.

Surrogacy (Regulation) Amendment Rules, 2024- As of 21^st Feb 2024, it is possible to use an egg donor or sperm donor if all other conditions are met. 

Conclusion

The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 aimed to tackle legal and ethical issues around surrogacy in India. These laws got rid of some old restrictions like needing close relatives to be surrogates. They also let single women use this method. But, some say these laws may limit women’s choices.

The goal is to make sure the surrogacy laws in India respect everyone’s rights. Meetings with different groups are important to protect surrogates, children, and donors. It’s important to work for equal access to these services for everyone, no matter their relationship status or gender.

Surrogacy in India is changing, and so should the rules. Leaders need to balance controlling the industry with protecting everyone’s rights, even foreign nationals seeking surrogacy in India. By working together and being open to everyone’s ideas, surrogacy regulations in India can be fair and helpful for those wanting to start a family.

If you’d like to learn more about IVF, Egg Donation, or surrogacy services globally, check out the rest of our website at  Complete Surrogacy Agency. We offer legally secure and affordable surrogacy consulting services for FREE.

For more resources on IVF and Surrogacy, browse our other web page- IVF Conceptions.

For more resources on IVF and Surrogacy, browse our other web page- Georgia Surrogacy Agency.

References used: 

• https://resolve.org
• https://www.asrm.org/

FAQ- Surrogacy Laws in India

What is the legal status of surrogacy in India for foreigners?

Foreign nationals can use surrogacy in India if they’re of Indian origin or are married to an Indian. They need to follow certain rules. For example, they can’t do commercial surrogacy.

What are the eligibility criteria for intending couples, intending women, and surrogate mothers under the Surrogacy (Regulation) Act, 2021?

Here’s who can participate under this Act:
– Intending Couples: They must be an infertile married Indian couple. The woman should be 23-50, and the man 26-55. They shouldn’t have children yet.
– Intending Women: This includes Indian widows or divorcees who are 35-45. Married Indian couples abroad also fall under this category.
– Surrogate Mothers: They should be Indian and ever married. Age should be 25-35, with her own child. She must be healthy and not get paid, except for medical expenses.

How does the Surrogacy (Regulation) Act, 2021 address the issue of commercial surrogacy?

The law only allows altruistic surrogacy. This means all surrogate mothers must do it for free. They can only get money for their medical needs.

What are the main criticisms of the Surrogacy (Regulation) Act, 2021?

Many people criticize the Act. They say it’s not fair because it mainly helps certain kinds of people. It leaves out the LGBTQI+ community and unmarried folks. Also, not letting surrogate mothers get paid goes against women’s rights and choices.

What are the legal alternatives to surrogacy for foreign nationals in India?

Foreign nationals who are of Indian origin can use surrogacy in India. The same goes for those married to Indians. They just need to follow the Act’s rules, which ban commercial surrogacy.

Source Links

• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/
• https://reproductiverights.org/assisted-reproduction-and-surrogacy-in-india/