Published: 8 September 2026
Medically reviewed by Dr. Pranay Shah, MS (ObGy), Director & Chief Fertility Consultant
Last medically reviewed: 8 September 2026
Wellspring IVF & Women’s Hospital, Ahmedabad · ART Reg. GS/AHD/024 · Surrogacy Reg. GJ-01/AHD/27/2026
Surrogacy in India is lawful only for a legally married Indian couple in which the woman is 23–50 and the man 26–55, or for an Indian widow or divorcee aged 35–45 — in every case with a certified medical indication, no surviving child (subject to one narrow exception), and only on an altruistic basis. Couples in which both spouses hold OCI cards qualify separately, on a certificate of recommendation from the Board.
Eligibility for surrogacy in India is not a clinical judgement. It is a statutory test, and a clinic has no discretion to widen it. Every criterion below comes from the Surrogacy (Regulation) Act, 2021 or the rules made under it, and a registered clinic that begins a surrogacy procedure without the prescribed certificates commits a criminal offence.
That matters practically, because much of what is published online about Indian surrogacy eligibility is either out of date or was never accurate. This article sets out what the law requires, section by section, and identifies where the position has genuinely changed.
Which Law Governs Surrogacy in India?
Two separate statutes apply, and they are frequently confused. The Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021) received assent on 25 December 2021 and came into force on 25 January 2022. It governs who may commission surrogacy, who may act as a surrogate, and what may lawfully be paid. The Assisted Reproductive Technology (Regulation) Act, 2021 separately governs the clinic, the laboratory and the gamete bank that carry out the procedures. A clinic offering surrogacy must be registered under both.
The detail sits in the Surrogacy (Regulation) Rules, 2022 (G.S.R. 460(E), 21 June 2022), which prescribe the insurance period, the number of attempts, the number of embryos that may be transferred and the medical indications that qualify a woman for gestational surrogacy. Those Rules have been amended several times, and two of the amendments changed eligibility materially.
| Instrument | Date | What it changed |
| Surrogacy (Regulation) Act, 2021 (Act 47 of 2021) | In force 25 Jan 2022 | Principal Act — eligibility, certificates, prohibitions, penalties |
| Surrogacy (Regulation) Rules, 2022 — G.S.R. 460(E) | 21 Jun 2022 | Principal Rules 1–14, Forms 1–5, insurance, attempts, embryo limits, medical indications |
| Amendment Rules, 2023 — G.S.R. 179(E) | 14 Mar 2023 | Barred donor gametes: both gametes had to come from the intending couple |
| Amendment Rules, 2023 — G.S.R. 415(E) | 8 Jun 2023 | Inserted rule 2(aa) defining “Couple of Indian Origin” (both spouses OCI cardholders) |
| Amendment Rules, 2024 — G.S.R. 119(E) | 21 Feb 2024 | Restored limited donor-gamete use on District Medical Board certification |
| Amendment Rules, 2026 — G.S.R. 492(E) | 17 Jun 2026 | Clinic registration fee and renewal (rules 10A, 11A). No change to eligibility |
Table 1 — The instruments that currently govern surrogacy eligibility in India. The 2026 amendment is the most recent, but it is administrative; the 2024 amendment remains the last change to eligibility.
Who Can Legally Opt for Surrogacy in India?
Only two categories of person may commission surrogacy. Section 2(1)(h) defines a couple as “the legally married Indian man and woman”, and section 2(1)(s) defines an intending woman as “an Indian woman who is a widow or divorcee between the age of 35 to 45 years”. Everyone outside those two definitions is excluded, however sympathetic the circumstances.
| Who | Eligible? | Statutory basis |
| Legally married Indian couple — wife 23–50, husband 26–55 | Yes | s.2(1)(h); s.4(iii)(c)(I) |
| Indian widow, aged 35–45 | Yes | s.2(1)(s) |
| Indian divorcee, aged 35–45 | Yes | s.2(1)(s) |
| Couple where both spouses hold OCI cards | Yes — with a certificate of recommendation from the Board | Proviso to s.4(ii)(a); rule 2(aa) |
| Never-married single woman | No | “Intending woman” is confined to a widow or divorcee |
| Widow or divorcee under 35, or over 45 | No | Age band in s.2(1)(s) |
| Single man, widower or divorced man | No | No corresponding category exists in the Act |
| Couple in a live-in relationship | No | “Couple” requires legal marriage |
| Same-sex couple | No | “Couple” is defined as a married man and woman |
| Foreign national who is not an OCI cardholder | No | Both definitions are limited to Indian citizens or OCI cardholders |
Table 2 — Statutory eligibility to commission surrogacy in India, as at 2 September 2026.
Two of these exclusions are currently under challenge in the Supreme Court and are discussed below. Until those challenges are decided, the table above states the law a registered clinic must apply.
What Medical Conditions Qualify a Woman for Surrogacy?
Surrogacy is not an alternative to IVF for a woman who can carry a pregnancy. Rule 14 of the 2022 Rules lists the medical indications that make gestational surrogacy lawful, and a District Medical Board must certify that one of them applies before anything else can proceed.
| Rule 14 indication | What it means clinically |
| (a) Absent, missing or abnormal uterus — including hypoplastic uterus, intrauterine adhesions, thin endometrium, small unicornuate uterus, T-shaped uterus — or a uterus surgically removed, for example for gynaecological cancer | The uterus is absent or structurally incapable of sustaining a pregnancy — including Müllerian agenesis, severe Asherman’s syndrome and post-hysterectomy states |
| (b) Repeated failure to conceive after multiple IVF or ICSI attempts (recurrent implantation failure) | Good-quality embryos have failed to implant across several transfers despite an adequate endometrium |
| (c) Multiple pregnancy losses from an unexplained medical reason, or unexplained graft rejection due to an exaggerated immune response | Recurrent loss that persists after a full evaluation has excluded the treatable causes |
| (d) Any illness that makes it impossible for a woman to carry a pregnancy to viability, or a pregnancy that is life threatening | Severe cardiac, renal, hepatic or other systemic disease in which pregnancy carries unacceptable maternal risk |
Table 3 — The four medical indications in rule 14 of the Surrogacy (Regulation) Rules, 2022.
Indication (c) is the one most often misread. Two miscarriages do not by themselves qualify a woman for surrogacy: the rule requires that the loss be unexplained, meaning the standard recurrent miscarriage evaluation has been completed and found no treatable cause. Indication (b) is equally specific — the failure must be at implantation, not at fertilisation or embryo development.
What Certificates Are Required Before Surrogacy Can Begin?
Section 4(iii) requires three separate certificates. None of them is issued by the clinic. They are issued by statutory bodies, and the treating clinic’s role begins only once they are in place. These steps are completed by the couple with the statutory authorities before any clinical procedure begins at Wellspring.
| Certificate | Who issues it | What it requires |
| Certificate of essentiality — s.4(iii)(a) | Appropriate Authority, on a District Medical Board certificate and a court order | (I) District Medical Board certificate of a medical indication under rule 14; (II) an order on parentage and custody from a court of the Magistrate of the first class or above, which becomes the birth affidavit; (III) 36 months’ insurance cover for the surrogate mother |
| Certificate of eligibility — surrogate mother — s.4(iii)(b) | Appropriate Authority | Ever-married woman with a child of her own, aged 25–35 on the day of implantation, acting as a surrogate only once in her lifetime, not providing her own gametes, with a certificate of medical and psychological fitness |
| Certificate of eligibility — intending couple — s.4(iii)(c) | Appropriate Authority | Married, female 23–50 and male 26–55 on the day of certification, and no surviving child biologically, by adoption or by earlier surrogacy |
Table 4 — The three statutory certificates required by section 4(iii) of the Surrogacy (Regulation) Act, 2021.
Does the “No Surviving Child” Rule Have Any Exception?
Yes, one. The proviso to section 4(iii)(c)(II) preserves eligibility for a couple who already have a child where that child “is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure”, approved by the Appropriate Authority on a District Medical Board certificate. The exception is narrow and evidenced; it is not a general secondary-infertility provision.
What Insurance Must Be Arranged for the Surrogate Mother?
Section 4(iii)(a)(III), read with rule 5, requires general health insurance in the surrogate mother’s favour for a period of thirty-six months, from an IRDAI-recognised insurer, in an amount “sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post-partum delivery complications”. No rupee figure is prescribed. Any clinic or agency quoting a fixed statutory insurance sum is stating something the law does not say.
Who Can Be a Surrogate Mother in India?
Section 4(iii)(b) sets five conditions, and section 6 adds a sixth that is often overlooked.
- Ever-married, with a child of her own. A woman who has never been married, or who has no living child, cannot act as a surrogate.
- Aged 25 to 35 on the day of implantation. The age is tested at implantation, not at consent or certification.
- Once in her lifetime. Section 4(iii)(b)(IV) permits a woman to act as a surrogate only once. Rule 6 separately permits up to three surrogacy attempts within that single surrogacy. Three attempts, one surrogacy — these are different limits and are constantly conflated.
- Gestational only. Section 4(iii)(b)(III) prohibits a surrogate from providing her own gametes. Traditional surrogacy is unlawful in India.
- Certified medically and psychologically fit by a registered medical practitioner.
- Written informed consent, in her own language. Section 6 requires that all known side effects and after-effects be explained to her and her written informed consent obtained in the prescribed form, in a language she understands. She may withdraw that consent at any time before the embryo is implanted.
Must the Surrogate Be a “Close Relative”?
No — and this is the single most persistent error in Indian surrogacy content. The 2016 Bill proposed a close-relative requirement. The Act as enacted did not adopt it. Section 4(iii)(b)(II) states that “a willing woman shall act as a surrogate mother”, with a proviso that “the intending couple or the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother”.
The obligation created by that proviso is the practically important part. It is the intending couple who must come forward with a willing woman. A surrogacy clinic cannot lawfully identify, recruit, empanel or introduce a surrogate mother. Section 3(v) makes it an offence to publish or communicate anything aimed at inducing or seeking a woman to act as a surrogate, and section 38 makes running any arrangement to empanel surrogates or to use brokers or intermediaries punishable with imprisonment of up to ten years. Any clinic or agency offering to “arrange a surrogate” is describing a criminal offence.
Can NRIs and OCI Cardholders Use Surrogacy in India?
Yes, within limits, and the two groups are not treated the same way.
Non-Resident Indians retain Indian citizenship. An NRI married couple therefore falls directly within the section 2(1)(h) definition of “couple” and needs nothing additional beyond the three certificates any resident Indian couple requires.
OCI cardholders are foreign nationals, and are accommodated through a different route. Rule 2(aa), inserted by the Surrogacy (Regulation) Amendment Rules, 2023 (G.S.R. 415(E), 8 June 2023), defines a “Couple of Indian Origin” as a couple where both husband and wife are OCI cardholders. That gives operative content to the proviso to section 4(ii)(a), under which a couple of Indian origin, or an intending woman, must obtain a certificate of recommendation from the Board — applied for in Form 1 under rule 4 — before availing surrogacy.
Two consequences follow that NRI and OCI patients should plan around. First, both spouses must hold OCI cards; a couple in which one spouse is an OCI cardholder and the other is a foreign national does not meet the rule 2(aa) definition. Second, the Board recommendation is an additional statutory step with its own timeline, sitting on top of the certificate of essentiality and certificate of eligibility. It should be initiated early rather than treated as a formality at the end.
Foreign nationals who hold no OCI card are not eligible. Both the “couple” and “intending woman” definitions are limited to Indian citizens, and the only extension is the OCI route above. There is no provision under which a foreign couple, or a foreign national married to an Indian citizen, may commission surrogacy in India.
What Age Must a Surrogate Mother Be in India?
A surrogate mother must be between 25 and 35 years of age on the day of implantation. That is a different limit from the age band applied to the intending couple, and the two are routinely confused. The Act contains four distinct age tests.
| Person | Age limit | Tested on | Source |
| Surrogate mother | 25 to 35 years | Day of implantation | s.4(iii)(b)(I) |
| Intending mother (married) | 23 to 50 years | Day of certification | s.4(iii)(c)(I) |
| Intending father (married) | 26 to 55 years | Day of certification | s.4(iii)(c)(I) |
| Intending woman (widow or divorcee) | 35 to 45 years | On availing surrogacy | s.2(1)(s) |
Table 5 — The four statutory age limits under the Surrogacy (Regulation) Act, 2021.
What Have the Courts Changed — and What Have They Not?
The Act has been under sustained constitutional challenge since 2022, principally in Arun Muthuvel v. Union of India and a large batch of connected petitions. As at the review date of this article, no final judgment on the constitutional validity of the Act has been delivered, and no eligibility criterion has been struck down.
One discrete question has been decided. In Vijaya Kumari S. & Anr. v. Union of India (2025 INSC 1209, decided 9 October 2025), the Supreme Court held that the age restriction in section 4(iii)(c)(I) does not operate retrospectively, and so does not apply to intending couples who had already commenced the surrogacy process — defined as having extracted and fertilised gametes and frozen an embryo — before the Act commenced on 25 January 2022. This is a narrow, transitional holding. It did not relax the age limits for anyone else, and couples beginning treatment now remain bound by them in full.
Two further points are commonly overstated. In October 2023 the Court stayed the donor-gamete bar in favour of an individual petitioner with Mayer-Rokitansky-Küster-Hauser syndrome, and in January 2024 granted comparable interim relief to seven further couples. Those were petitioner-specific interim orders, not a striking down of the rule; sources describing them as having invalidated the amendment are wrong. Separately, challenges to the exclusion of never-married single women, to the 35-year floor for widows and divorcees, to the exclusion of single and divorced men, and to the prohibition on commercial surrogacy are all pending and undecided.
This area is in motion: the Ministry of Health & Family Welfare issued a notice on 11 March 2026 concerning a comprehensive review of both Acts. Any statement of “current” eligibility, including this one, should be read as accurate to its stated review date and verified before a treatment plan is committed to.
Where Eligibility Is Most Often Misunderstood
| Commonly stated | What the law actually provides |
| “A surrogate can carry three times.” | A woman may act as a surrogate once in her lifetime (s.4(iii)(b)(IV)). Rule 6 permits up to three attempts within that one surrogacy. |
| “Any couple with infertility can opt for surrogacy.” | Only the four rule 14 indications qualify, certified by a District Medical Board. Infertility alone does not. |
| “Donor eggs and sperm are banned in surrogacy.” | That was the position between 14 March 2023 and 20 February 2024. Since G.S.R. 119(E) of 21 February 2024, one donor gamete is permitted where a District Medical Board certifies a medical condition necessitating it, provided the child has at least one gamete from the intending couple. |
| “Foreign couples can do surrogacy in India through an agency.” | Foreign nationals who are not OCI cardholders are not eligible. There is no agency route around the statutory definitions. |
| “The certificates are a formality the clinic handles.” | They are issued by a District Medical Board, a Magistrate’s court and the Appropriate Authority. A clinic cannot issue them and cannot begin treatment without them. |
Table 6 — Frequently repeated claims about Indian surrogacy eligibility, tested against the statute.
When Should You Seek a Specialist Assessment?
Eligibility is settled in two stages, and they are worth separating. The first is clinical: does a rule 14 indication genuinely apply? That question requires a complete evaluation — uterine imaging, an implantation-failure or recurrent-loss workup where relevant, and an assessment of any systemic disease that would make pregnancy unsafe. The second is statutory: do the ages, marital status and child status meet sections 2(1) and 4(iii)?
Assessment is appropriate where the uterus is absent or has been removed; where hysteroscopy has confirmed severe adhesions or an unresponsive endometrium; where good-quality embryos have repeatedly failed to implant; where losses have continued after a complete evaluation; or where pregnancy would carry serious maternal risk. It is equally appropriate simply to establish that surrogacy is not required.
Where the criteria are met, the pathway proceeds as altruistic surrogacy only. 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. Any clinic’s registration can and should be checked independently on the Government of India’s National ART and Surrogacy Registry, which publishes each registered clinic’s name, address, state, registration number and downloadable registration certificate.
Frequently Asked Questions
Who can legally opt for surrogacy in India?
A legally married Indian couple in which the wife is 23–50 and the husband 26–55, or an Indian widow or divorcee aged 35–45. Both must have a District Medical Board certificate confirming a medical indication under rule 14, and the couple must have no surviving child unless the narrow disability or life-threatening-illness exception applies.
Can NRIs and OCI cardholders use surrogacy in India?
NRIs are Indian citizens and are eligible on the same terms as resident couples. OCI cardholders are eligible only where both spouses hold OCI cards, as a “Couple of Indian Origin” under rule 2(aa), and must additionally obtain a certificate of recommendation from the Board in Form 1. Foreign nationals without OCI cards are not eligible.
What age must a surrogate mother be in India?
Between 25 and 35 years on the day of implantation, under section 4(iii)(b)(I). She must also be an ever-married woman with a child of her own, must not provide her own gametes, and may act as a surrogate only once in her lifetime.
Does the surrogate mother have to be a relative?
No. The Act requires “a willing woman” who satisfies section 4(iii)(b); it does not require a close relative. The intending couple must, however, approach the Appropriate Authority with that willing woman themselves — a clinic cannot lawfully find or introduce one.
Can a single or unmarried woman opt for surrogacy in India?
Only a widow or a divorcee between 35 and 45 qualifies as an “intending woman”. A never-married single woman, a woman in a live-in relationship, and a widow or divorcee outside that age band are not eligible. Challenges to these exclusions are pending before the Supreme Court and undecided.
How long must insurance cover the surrogate mother?
Thirty-six months, under section 4(iii)(a)(III) read with rule 5, from an IRDAI-recognised insurer, in an amount sufficient to cover all pregnancy complications and post-partum delivery complications. The law prescribes the period and the standard of adequacy, but no fixed rupee amount.
How can I check that a surrogacy clinic is registered?
Search the National ART and Surrogacy Registry maintained by the Ministry of Health & Family Welfare, which lists every registered surrogacy clinic with its registration number and a downloadable certificate. A clinic that cannot give you a registration number verifiable there should not be conducting surrogacy.
The Practical Position
Indian surrogacy law is restrictive by design and administered through certificates a clinic neither issues nor controls. The decisive questions are settled before treatment begins: whether a rule 14 indication is genuinely present, whether the statutory ages and child status are met, and whether the OCI route applies. Settling them early prevents avoidable expense — and not infrequently identifies a treatable problem that makes surrogacy unnecessary.
Couples who want to know whether their situation meets the statutory criteria, or who need a complete assessment before that question can be answered, 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, 2023. G.S.R. 415(E), notified 8 June 2023 (inserting rule 2(aa), “Couple of Indian Origin”). Published in the Gazette of India, Extraordinary, Part II, Section 3(i).
- 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. Vijaya Kumari S. & Anr. v. Union of India, 2025 INSC 1209, decided 9 October 2025 (prospective operation of section 4(iii)(c)(I)).
- Supreme Court of India. Arun Muthuvel v. Union of India, W.P. (Civil) No. 756 of 2022 and connected petitions — pending as at the review date of this article.
