Published: 10 September 2026
Medically reviewed by Dr. Pranay Shah, MS (ObGy), Director & Chief Fertility Consultant
Last medically reviewed: 10 September 2026
Wellspring IVF & Women’s Hospital, Ahmedabad · ART Reg. GS/AHD/024 · Surrogacy Reg. GJ-01/AHD/27/2026
India permits surrogacy only on an altruistic basis. Nothing may be given to the surrogate mother beyond her medical expenses, 36 months of health insurance and such other expenses as may be prescribed — none of which have yet been prescribed by rule. Commercial surrogacy, advertising for surrogates and the use of brokers are criminal offences carrying up to ten years’ imprisonment.
“Altruistic surrogacy” is a statutory term, not a description of intent. It defines precisely what may change hands, and the Surrogacy (Regulation) Act, 2021 enforces the boundary with some of the heaviest penalties in Indian medical law. Understanding where that line falls matters to intending parents, because a great deal of what is offered online — packages, agency-sourced surrogates, quoted “surrogate compensation” — describes conduct the Act criminalises.
This article sets out what the 2021 Act permits, what it prohibits outright, and what it positively requires, using the statute and the rules made under it rather than secondary summaries.
What Is the Difference Between Altruistic and Commercial Surrogacy?
The Act defines both terms. Under section 2(1)(b), altruistic surrogacy is surrogacy “in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative”.
Section 2(1)(g) defines commercial surrogacy as the commercialisation of surrogacy services or their component services, “including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes”, or trading the services of surrogate motherhood by way of payment, reward, benefit, fee, remuneration or monetary incentive in cash or kind — again excepting medical expenses, prescribed expenses and insurance.
| Altruistic surrogacy | Commercial surrogacy | |
| Legal status in India | The only permitted form (s.4(ii)(b)) | Prohibited (s.3(ii), s.4(ii)(c)) |
| What may be given to the surrogate | Medical expenses, 36 months’ insurance, and “such other prescribed expenses” — none prescribed to date | Any fee, reward, benefit or incentive in cash or kind |
| Who may find the surrogate | The intending couple, who must approach the Appropriate Authority with a willing woman | Agencies, brokers, empanelment — all prohibited (s.38(1)(a)) |
| Advertising | Prohibited in every form (s.3(v)) | Prohibited (s.38(1)(b)) |
| Penalty on the clinic or intermediary | — | Up to 10 years’ imprisonment and fine up to ₹10 lakh (s.38(2)) |
| Penalty on the intending couple | — | Up to 5 years and ₹5 lakh for a first offence; up to 10 years and ₹10 lakh thereafter (s.40) |
Table 1 — Altruistic and commercial surrogacy compared, as defined and penalised by the Surrogacy (Regulation) Act, 2021.
What May Lawfully Be Paid to a Surrogate Mother?
Three heads only: her medical expenses, the insurance coverage required by law, and “such other prescribed expenses”. The third head is the one that causes confusion, and the honest answer is that it is currently empty. The Act contemplates that expenses may be prescribed by rule; the Surrogacy (Regulation) Rules, 2022 and every amendment to them, up to and including the Amendment Rules of 17 June 2026, have not prescribed any head or quantum of such expenses.
The practical consequence is important. Because nothing has been prescribed, any payment to a surrogate mother beyond genuine medical expenses and insurance has no statutory basis. A “surrogate compensation” figure, a monthly allowance, a nutrition stipend or a lump sum at delivery is not a lawful component of an Indian surrogacy arrangement, and offering one exposes both the clinic and the intending couple to prosecution. Any published price list that separates a “surrogate cost” from the medical cost is describing something the Act does not permit.
What Insurance Must Be Provided to a Surrogate Mother?
Section 4(iii)(a)(III), read with rule 5, requires the intending couple or intending woman to purchase general health insurance in the surrogate mother’s favour for thirty-six months, from an insurer or agent recognised by the Insurance Regulatory and Development Authority, “for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post-partum delivery complications”.
Two points are routinely misstated. First, the period is 36 months, not the duration of the pregnancy — the cover is designed to extend well beyond delivery, because the complications it is meant to answer for can present late. Second, no rupee amount is prescribed; the statutory test is adequacy, not a fixed sum. A policy that lapses at delivery, or that carries a sum insured plainly incapable of covering a serious obstetric complication, does not satisfy the section even if a certificate has been issued.
What Does the Act Prohibit Outright?
Section 3 sets out the prohibitions, and they extend well beyond payment.
- Unregistered practice. No clinic may conduct or assist in surrogacy unless registered under the Act (s.3(i)), and no practitioner may conduct surrogacy procedures at an unregistered place (s.3(iv)).
- Commercial surrogacy in any form. No clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any other person may conduct, offer, undertake, promote, associate with or avail of commercial surrogacy (s.3(ii)).
- Section 3(v) prohibits promoting, publishing, canvassing, propagating or advertising anything that is aimed at or likely to induce a woman to act as a surrogate mother; that seeks a woman to act as a surrogate; that states or implies that a woman is willing to become one; that promotes a clinic for commercial surrogacy; or that advertises commercial surrogacy in any medium.
- Abortion without consent and authorisation. Abortion of a surrogate pregnancy requires the surrogate mother’s written consent and the authorisation of the Appropriate Authority, and must in any event comply with the Medical Termination of Pregnancy Act, 1971 (s.3(vi)).
- Section 5 prohibits any person — including the surrogate mother’s husband or relative, or the intending couple — from seeking or encouraging surrogacy procedures on her other than for the permitted purposes.
- Section 7 prohibits the intending couple or intending woman from abandoning the child, in India or abroad, for any reason whatsoever, including genetic defect, birth defect or any other medical condition.
The advertising prohibition deserves particular attention from patients, because it is a useful test of who they are dealing with. A website that invites women to become surrogates, that advertises surrogate availability, or that markets surrogacy as a purchasable package is, on the face of it, describing conduct prohibited by section 3(v) and punishable under section 38. A registered clinic can lawfully explain the law, assess whether a medical indication exists, and perform the procedures once the statutory certificates are in place — which is the whole of what surrogacy at Wellspring involves. It cannot lawfully source a surrogate, and neither can anyone acting for it.
Can Donor Eggs or Sperm Be Used in Surrogacy in India?
Yes, in defined circumstances — and this is the provision on which most published content is out of date.
The position has changed twice. The Surrogacy (Regulation) Amendment Rules, 2023 (G.S.R. 179(E), 14 March 2023) substituted paragraph 1(d) of Form 2 to require that a “couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed”, while a single woman — a widow or divorcee — “must use self eggs and donor sperms”. That absolute bar caused real hardship for women who could not produce usable oocytes, and generated the litigation described below.
The Surrogacy (Regulation) Amendment Rules, 2024 (G.S.R. 119(E), notified 21 February 2024) replaced it. The current text provides that a couple undergoing surrogacy must have both gametes 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 must have atleast one gamete from the intending couple.” The position for a single eligible woman was left unchanged: self eggs and donor sperm.
| Situation | Donor gametes permitted? | Condition |
| Married intending couple, no certified medical condition | No | Both gametes must come from the intending couple |
| Married intending couple, District Medical Board certifies a medical condition in either spouse | Yes — one donor gamete | The child must have at least one gamete from the intending couple |
| Married intending couple, both partners require donor gametes | No | The “at least one gamete” condition cannot be satisfied |
| Intending woman (widow or divorcee) | Donor sperm only | She must use her own eggs |
| Any arrangement | Never from the surrogate | A surrogate may not provide her own gametes (s.4(iii)(b)(III)) |
Table 2 — Use of donor gametes in surrogacy following G.S.R. 119(E) of 21 February 2024.
Two clinical points follow. First, the certification is a District Medical Board function, not a clinic decision, and the condition must be documented before the cycle is planned. Second, where the medical problem is oocyte quality or quantity rather than an inability to carry a pregnancy, the appropriate route is usually donor egg IVF with the intending mother carrying the pregnancy — a different, simpler and far less regulated pathway than surrogacy. Surrogacy is indicated by an inability to carry, not by an inability to produce eggs.
Litigation on this point is often misreported. In October 2023 the Supreme Court stayed the donor-gamete bar in favour of a single petitioner with Mayer-Rokitansky-Küster-Hauser syndrome, and in January 2024 granted comparable relief to seven further couples. Those were petitioner-specific interim orders. The rule was not struck down; it was subsequently amended by the Government, and it is the amended rule that now applies.
What Protections Does the Act Give the Surrogate Mother?
The altruistic framework is paired with a set of protections that are as much a part of the Act as the payment restriction.
| Protection | What the law requires | Source |
| Informed consent | All known side effects and after-effects must be explained to her, and her written informed consent obtained in the prescribed form, in a language she understands | s.6(1) |
| Right to withdraw | She may withdraw consent at any time before the embryo is implanted | s.6(2) |
| Only once | A woman may act as a surrogate mother only once in her lifetime | s.4(iii)(b)(IV) |
| Attempt limit | No more than three surrogacy attempts on one surrogate mother | Rule 6 |
| Embryo limit | One embryo should be transferred, extendable to a maximum of three in special circumstances | Rule 8 |
| Gestational only | She may not provide her own gametes | s.4(iii)(b)(III) |
| Insurance | 36 months of general health insurance covering pregnancy and post-partum complications | s.4(iii)(a)(III); rule 5 |
| Fitness certification | A certificate of medical and psychological fitness from a registered medical practitioner | s.4(iii)(b)(V) |
| Freedom from coercion | No relative, husband, intending couple or other person may seek or encourage surrogacy procedures on her outside the permitted purposes | s.5 |
Table 3 — Statutory protections for the surrogate mother under the 2021 Act and the 2022 Rules.
The embryo limit in rule 8 is worth drawing out, because it interacts with clinical practice. Transferring a single embryo is the rule, not a preference, and it exists to avoid exposing a surrogate mother to the maternal risks of multiple pregnancy. In practice this makes surrogacy a frozen embryo transfer pathway in most cases, with embryos created, screened where appropriate, vitrified and transferred one at a time into a prepared endometrium.
What Is the Legal Status of the Child?
Section 8 provides that a child born through surrogacy “shall be deemed to be a biological child of the intending couple or intending woman” and is entitled to all the rights and privileges available to a natural child under any law in force. Parentage is not left to be established after birth: section 4(iii)(a)(II) requires an order on parentage and custody from a court of the Magistrate of the first class or above before the procedure begins, and that order operates as the birth affidavit once the child is born. Section 7’s prohibition on abandonment applies whatever the child’s condition at birth.
Myths About Altruistic Surrogacy in India
| Commonly stated | What the law actually provides |
| “Altruistic just means the payment is unofficial.” | Any payment beyond medical expenses and insurance is commercial surrogacy, punishable under s.38 and s.40 regardless of how it is described or routed. |
| “There is a fixed government-approved surrogate compensation.” | No expenses beyond medical costs and insurance have ever been prescribed under the Rules. There is no approved figure. |
| “The clinic arranges everything, including the surrogate.” | The intending couple must approach the Appropriate Authority with a willing woman. Empanelling surrogates or using intermediaries carries up to 10 years’ imprisonment (s.38). |
| “Donor eggs are banned in surrogacy.” | That was the position from 14 March 2023 to 20 February 2024. Since G.S.R. 119(E), one donor gamete is permitted on District Medical Board certification. |
| “Insurance only needs to run until delivery.” | Rule 5 requires 36 months of cover, expressly extending to post-partum complications. |
| “The surrogate can change her mind at any time.” | Her statutory right to withdraw consent operates before implantation (s.6(2)). After implantation the position is governed by s.3(vi) and the MTP Act, 1971. |
Table 4 — Frequently repeated claims about altruistic surrogacy, tested against the statute.
Frequently Asked Questions
What is the difference between altruistic and commercial surrogacy?
Altruistic surrogacy permits only the surrogate mother’s medical expenses, her 36-month insurance cover and any expenses prescribed by rule. Commercial surrogacy is any arrangement in which she, her dependents or her representative receive a fee, reward, benefit or incentive in cash or kind. Only altruistic surrogacy is lawful in India; commercial surrogacy is a criminal offence.
Can donor eggs or sperm be used in surrogacy in India?
One donor gamete may be used where a District Medical Board certifies that either spouse has a medical condition necessitating it, provided the child has at least one gamete from the intending couple. A widow or divorcee availing surrogacy must use her own eggs with donor sperm. A surrogate mother may never provide her own gametes.
What insurance must be provided to a surrogate mother?
General health insurance in her favour for 36 months, from an IRDAI-recognised insurer, in an amount sufficient to cover all complications arising out of pregnancy and post-partum delivery complications. The law prescribes the period and a standard of adequacy but no fixed sum, so the sum insured must be judged against the complications it may have to answer for.
Is a surrogate mother paid in India?
No. Beyond her medical expenses and the statutory insurance, no payment, allowance or incentive may be given to her, her dependents or her representative. The Act allows for further expenses to be prescribed by rule, but none has been prescribed. Any quoted “surrogate compensation” falls outside the law.
How many embryos can be transferred to a surrogate mother?
Rule 8 of the Surrogacy (Regulation) Rules, 2022 provides that one embryo should be transferred, extendable to a maximum of three in special circumstances. The limit exists to protect the surrogate mother from the maternal risks of multiple pregnancy.
Can a surrogate mother be a surrogate more than once?
No. Section 4(iii)(b)(IV) permits a woman to act as a surrogate mother only once in her lifetime. Rule 6 separately allows up to three surrogacy attempts within that single surrogacy — a different limit, and one frequently confused with the first.
The Practical Position
The altruistic framework is not a formality layered over an otherwise commercial arrangement. It determines who may be involved, what may be paid, who may be approached and what may be published — and it is enforced with imprisonment rather than fines alone. For intending parents, the most useful protective habit is to treat any offer that includes a surrogate, a package price or a compensation figure as a warning rather than a convenience, and to verify independently that a clinic is registered.
Wellspring IVF & Women’s Hospital is an ART-registered IVF clinic in Ahmedabad, Gujarat, India, led by Dr. Pranay Shah, holding ART registration GS/AHD/024 and surrogacy registration GJ-01/AHD/27/2026. Both can be checked against the Government of India’s National ART and Surrogacy Registry, which publishes each registered clinic’s registration number and certificate.
Couples who want to understand how the altruistic framework applies to their own situation, or whether a medical indication for surrogacy exists at all, can discuss it with a fertility specialist at Wellspring IVF & Women’s Hospital, Ahmedabad, on +91 9099946050. OPD hours are Monday to Saturday, 10:00 AM to 4:00 PM.
References
- Government of India. The Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021). Assented 25 December 2021; in force 25 January 2022.
- Ministry of Health & Family Welfare, Government of India. The Surrogacy (Regulation) Rules, 2022. G.S.R. 460(E), notified 21 June 2022.
- Ministry of Health & Family Welfare, Government of India. Surrogacy (Regulation) Amendment Rules, 2023. G.S.R. 179(E), notified 14 March 2023.
- Ministry of Health & Family Welfare, Government of India. Surrogacy (Regulation) Amendment Rules, 2024. G.S.R. 119(E), notified 21 February 2024. Published in the Gazette of India, Extraordinary, Part II, Section 3(i).
- Ministry of Health & Family Welfare, Government of India. Surrogacy (Regulation) Amendment Rules, 2026. G.S.R. 492(E), notified 17 June 2026.
- Department of Health Research, Ministry of Health & Family Welfare, Government of India. National ART and Surrogacy Portal.
- Department of Health Research, Ministry of Health & Family Welfare, Government of India. National ART and Surrogacy Registry — registered surrogacy clinics.
- Supreme Court of India. Arun Muthuvel v. Union of India, W.P. (Civil) No. 756 of 2022 and connected petitions — interim orders of 18 October 2023 and January 2024 on donor gametes; principal challenge pending as at the review date of this article.
