Surrogate

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Introduction
A “surrogate” (or surrogate mother) is the woman who carries and delivers a child for another person or couple (the commissioning/intended parents). In India, surrogacy sits at the confluence of reproductive medicine, regulatory law and fundamental rights: it implicates bodily autonomy, the rights and welfare of women and children, family law (parentage), and public policy (commercial exploitation). Since the legislative overhaul of 2020–2022 and a series of leading judicial decisions, surrogacy in India is tightly regulated; practitioners must therefore combine clinic-level diligence with a rigorous command of statutory prerequisites and procedural compliance.

Core Legal Framework
Primary statutes and rules governing surrogacy in India are:

  • The Surrogacy (Regulation) Act, 2021 (SR Act), and the Surrogacy (Regulation) Rules notified under it. See, in particular:
  • Section 2: Definitions (where terms such as “surrogate mother”, “altruistic surrogacy” and “commercial surrogacy” are defined).
  • Section 4: Prohibition of commercial surrogacy and related prohibitions (the Act makes commercial surrogacy an offence and prescribes the limited circumstances in which surrogacy is permitted).
  • Sections dealing with eligibility of intended couple and surrogate, and the establishment of National and State Surrogacy Boards and appropriate authorities (these set out the procedural and documentary scheme for lawful surrogacy).

  • Penal provisions and enforcement (offences, penalties and cognizance).

  • The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), and ART Rules:

  • Registration, accreditation and functioning of ART clinics and banks; record-keeping and reporting obligations;
  • Safeguards on informed consent, counselling and preservation of gametes/embryos;

  • Provisions addressing the rights of the child born through ART.

  • Relevant constitutional jurisprudence (e.g., right to privacy and bodily autonomy), and administrative circulars / guidelines issued by the National or State Boards.

(Practitioners must consult the exact text of the SR Act, ART Act and the respective Rules for precise section-by-section language; the acts place definitions and core prohibitions at the beginning and set out eligibility and procedural regimes in subsequent chapters.)

Practical Application and Nuances
How “surrogate” operates in day-to-day practice of litigators, counsellors and clinic counsel:

  1. Eligibility and documentation (the frontline practical hurdle)
  2. Under the SR Act and Rules a surrogate must meet statutory eligibility criteria (age, marital status, parity, medical and psychological fitness, close-relative requirement in the case of altruistic surrogacy, and certificate from the appropriate authority). Ensure the surrogate’s identity, marital status and proof of prior childbirth are documented; secure the statutory medical and psychological fitness certificates before any embryo transfer.

  3. Practical checklist: identity proof, Aadhar/PAN, marriage certificate (if required), proof of being a “close relative” (if that is the mandatory route), medical fitness certificate from authorised ART clinic, written informed consent (dated and witnessed), and counselling records. Missing documents are a common cause of later litigation or administrative action.

  4. Consent, timing and informed consent

  5. The surrogate’s consent is foundational. Consent must be express, informed and recorded before any procedure. Counsel for commissioning parents must ensure that consent was not induced by any commercial consideration (commercial surrogacy is prohibited) and that counselling about risks, alternatives and post-delivery clinical care is recorded.

  6. Where transfer or retrieval occurs before the surrogate’s statutory fitness certificate is issued, the procedure is vulnerable to challenge and administrative penalties.

  7. Surrogacy agreements and enforceability

  8. The SR Act prohibits commercial surrogacy; therefore, private “commercial” surrogacy contracts (with payments to the surrogate other than legitimate medical and insurance-related reimbursements permitted by law) will be unlawful and unenforceable. Altruistic surrogacy arrangements that comply with statutory requirements and the compensation/reimbursement rules may be recognised.

  9. Practical drafting tip: agreements should focus on medical responsibilities, disclosure clauses, dispute-resolution clauses, insurance/medical expense arrangements, and explicit relinquishment of parental rights by the surrogate (if consistent with the Act). However, contractual clauses that purport to pay a surrogate beyond permitted reimbursements should be avoided — they expose parties to criminal consequences.

  10. Parentage, birth certificates and documentation of the child

  11. Post-birth, the intended parents must secure the child’s birth certificate and other civic records. The SR Act/ART Act envisage that intended parents are the legal parents (subject to statutory formalities). In practice, hospitals, registrars and passport authorities often require additional documentation (affidavits, certificates from the ART clinic, the appropriate authority’s certificate under the SR Act).

  12. Example: In Baby Manji Yamada (discussed below) the Supreme Court required properly attested documents from the commissioning parents and clinics so that immigration and citizenship problems could be resolved. Expect delays: prepare a package (certificate of eligibility of intended parents, certificate of surrogate’s eligibility, clinic records, delivery certificate, adoption-not-required affidavits where applicable).

  13. Criminal and administrative risk areas

  14. Commercial surrogacy, advertisement of surrogacy services, and illegal brokerage are offences. Validate records showing absence of payments beyond permitted reimbursements. Insist on bank statements (where reimbursement occurs), receipts for medical expenses, and insurance records.

  15. Cross-border surrogacy risks: Most foreign commissioning arrangements that existed pre-2021 have now been curtailed. Foreign nationals must meet the SR Act’s eligibility (as amended and applied) — in many cases foreign-intended parents now face practical and legal impediments. Draft and advise accordingly.

  16. Evidence in litigation and tribunals

  17. To defend a commissioning parent or surrogate in litigation, compile: (i) the ART clinic’s complete medical record (IVF logs, embryo-transfer sheets, gamete source documentation, counselling notes); (ii) statutory certificates issued by appropriate authorities; (iii) written informed consent and counselling records of surrogate; (iv) bank records for expenses and reimbursements; (v) family status documents (marriage certificates, birth certificates of surrogate’s children).
  18. In custody or parentage disputes, expert evidence (reproductive medicine expert, clinical psychologist) is often decisive: proof of genetic linkage, evidence of the surrogate’s informed consent and evidence of statutory compliance typically determine outcomes.

Landmark Judgments
– Baby Manji Yamada v. Union of India (2008) (Supreme Court)
– Facts & principle: The case concerned a baby born through surrogacy to a Japanese commissioning couple; after the parents separated the baby was stranded without passport/visa. The Supreme Court permitted provisional relief to allow the child to leave India with the commissioning father and highlighted the need for clear regulatory safeguards in international surrogacy cases. Practical takeaway: courts will look to clinic records, DNA/medical evidence and documentary proof of parentage and will endeavour to prevent statelessness of a child; absence of statutory regulation complicates and delays outcomes.

  • Justice K.S. Puttaswamy v. Union of India (2017) (Supreme Court)
  • Relevance: Though not a surrogacy case per se, Puttaswamy cemented the rights to privacy and bodily autonomy. The decision supports arguments about reproductive autonomy (participants’ right to make informed reproductive choices) and data privacy (sensitive medical data in ART registries). Practical takeaway: in litigation over involuntary exploitation, forced medical procedures, or data misuse in the ART/ surrogacy context, privacy and dignity grounds are potent constitutional arguments.

Strategic Considerations for Practitioners
For commissioning/intended parents
– Pre-procedure compliance: Do not proceed without the surrogate’s statutory fitness certificate and the intended parents’ eligibility certificate. Insist on registration of the ART clinic and proper maintenance of records.
– Documentation package: Compile and notarise a file containing all pre-procedure certificates, the informed consent, the surrogacy agreement (altruistic format), proof of payments limited to permitted reimbursements, insurance records and counselling certificates. This package pre-empts administrative delay at birth-registration and passport application stages.
– Anticipate civil challenges: Have custody/parentage pleadings ready and be prepared to apply for protective interim orders if the surrogate or a relative claims custody; secure DNA/medical proof early.

For surrogate mothers and their counsel
– Ensure informed consent and counselling records: A surrogate’s counsel must insist on independent legal advice for the surrogate, document her informed consent, and confirm she understands the nature and consequences of surrogacy, especially relinquishment of parental rights.
– Protect health and welfare: Ensure express contractual provisions (and clinic obligations) for antenatal care, delivery care, postnatal care, and adequate medical insurance for pregnancy-related and emergency care.
– Avoid exploitative clauses: Counsel should ensure the surrogate is not asked to sign away rights beyond the scope of the Act, and that any reimbursements are transparently documented.

Common pitfalls to avoid
– Relying on pre-2021 commercial surrogacy precedents: The statutory regime has changed; enforceability and legality depend on strict compliance with the SR Act and ART Act and the corresponding Rules.
– Incomplete medical records: Lack of a detailed ART clinic record is frequently fatal in parentage and immigration disputes.
– Informal reimbursements/payments: Any undeclared payment to a surrogate risks criminal prosecution; keep payments transparent, documented and within statutory allowances.
– Ignoring registry/authority formalities: Failure to obtain certificates from appropriate authorities (State or National) attracts penalties and can render the surrogacy arrangement void.

Conclusion
In contemporary Indian practice a “surrogate” is not merely a clinical actor but the focal point of a heavily regulated statutory regime that balances reproductive autonomy with protection against exploitation and trafficking. For practitioners the operative tasks are documentary: ensure statutory eligibility, obtain and preserve the surrogate’s informed consent and medical records, secure registration and certificates under the SR Act and ART Act, and anticipate administrative friction at the birth-registration and immigration stages. Strategically, counsel must combine clinical evidence and statutory compliance to protect parentage claims, guard the surrogate’s health and rights, and avoid the criminal and administrative pitfalls of commercial or unregulated arrangements.