AM LAW & CO

19/04/2025

Overview

India enacted a new surrogacy law in 2021 to regulate and protect all parties involved in surrogacy.

Commercial surrogacy is banned; only altruistic surrogacy is permitted (no monetary compensation except medical expenses and insurance).

Law aims to prevent exploitation, ensure ethical practices, and promote transparency.

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Key Provisions

1. Altruistic Surrogacy

Surrogate mothers can only be compensated for medical expenses and insurance.

Purpose: to prevent financial exploitation of women.

2. Eligibility Criteria for Intended Parents

Must be married (woman: 23–50 years, man: 26–55 years).

Must not have biological children from previous marriages.

Must bring a willing surrogate (married woman with at least one child).

Single women (35–45 years, married/divorced/widowed) may qualify if childless.

3. Medical Conditions

Surrogacy permitted for:

MRKH syndrome

Unicornuate uterus

Repeated IVF failures

Miscarriages or abortions

4. Requirements for Surrogate Mothers

Must be married, 25–35 years, with at least one biological child.

Must pass medical and psychological tests.

Only one surrogacy attempt per surrogate.

Only one embryo transfer per attempt.

Intended parents can attempt surrogacy up to three times.

5. Legal Requirements

Documents required:

Proof of marriage and age

Medical indication from District Board

Surrogate’s eligibility and essentiality certificates

Surrogate’s insurance (minimum 3 years)

No monetary payment beyond essentials

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Penalties

Violation of the Act can result in:

Up to 10 years imprisonment

Fine up to Rs 10 lakh

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FAQs Summary

1. Penalties: Imprisonment up to 10 years and Rs 10 lakh fine.

2. Couple eligibility: Married, no biological children, within defined age limits.

3. Single woman eligibility: 35–45 years, divorced/widowed/married, must be childless.

4. Surrogate compensation: Only medical-related expenses.

5. Documents needed: Legal, medical, insurance-related certifications.

6. Eligibility (Medical): Specific infertility-related medical conditions.

7. Embryo donation: Not allowed; at least one biological parent required.

8. Surrogate insurance: Must last 3 years.

20/03/2025

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05/03/2025

05/03/2025

As of March 5, 2025, several notable developments have emerged in the realm of surrogacy:

Australia's Surrogacy Law Reforms

Australia currently prohibits commercial surrogacy but permits altruistic surrogacy, with regulations varying by state. Notably, Western Australia (WA) remains the only state where gay couples and single men are barred from accessing altruistic surrogacy. The upcoming WA state election presents a potential shift, as the WA Labor party has pledged to align surrogacy laws with other states if re-elected. Advocates, including Anna McKie from Surrogacy Australia, are pushing for nationally consistent legislation and reduced discrimination against men. Some gay couples have resorted to overseas surrogacy due to restrictive local laws, facing complex and costly processes. There are calls for federal reforms to simplify surrogacy procedures and proposals for a regulated compensation model for surrogates. The Australian Law Reform Commission is set to review surrogacy laws and propose reforms by July next year.

International Surrogacy Challenges

A UK couple from St Albans, Damian and Pasan Fernando, invested $107,000 in a surrogacy process in Cyprus, resulting in the birth of their twin sons on January 3, 2025. They are currently unable to return home due to delays and errors in the passport application process for the twins. Despite submitting applications on January 13 and resubmitting them following a request due to confusion about the delivery of the passports, they have faced ongoing miscommunications and misplaced documents, causing significant delays. The couple has had to move between multiple accommodations, incurring additional costs on top of their surrogacy expenses. Facing uncertainty and potential financial strain, they remain hopeful that their experience can provide encouragement to others considering parenthood through surrogacy.

Ethical Debates Surrounding Surrogacy

The rise of commercial surrogacy, especially among celebrities, has sparked ethical concerns regarding the potential exploitation and commodification of women's bodies. High-profile figures such as Lily Collins, Kim Kardashian, and Paris Hilton have used surrogates, prompting debates about the ethics of such arrangements. There are concerns that commercial surrogacy often involves substantial financial transactions, potentially exploiting economically vulnerable women in countries like Mexico and Kenya, leading some nations, like India and Thailand, to ban the practice. Despite these ethical issues, some argue against a total ban on surrogacy, emphasizing its importance for individuals who cannot conceive due to medical conditions or for same-sex couples. Advocates suggest implementing clearer and stricter regulations, proposing that surrogacy should be altruistic with capped expenses strictly for medical costs, and that legal responsibility should shift to the intended parents from birth to protect all parties involved.

India's Supreme Court to Examine Surrogacy Age Limits

In India, the Supreme Court has agreed to examine issues concerning the age restrictions stipulated in the 2021 surrogacy laws. Currently, the law mandates that the intended mother must be between 23 and 50 years old, and the intended father between 26 and 55 years old. The surrogate mother must be married, aged between 25 and 35, have a biological child, and can act as a surrogate only once in her lifetime. The court has asked the Centre to file its written submissions, indicating a potential re-evaluation of these age-related provisions.

These developments highlight the evolving legal, ethical, and personal dimensions of surrogacy worldwide, reflecting diverse perspectives and challenges associated with the practice.

05/03/2025

India's surrogacy laws have undergone significant reforms in recent years, culminating in the enactment of the Surrogacy (Regulation) Act, 2021. This legislation aims to regulate surrogacy practices and address ethical concerns associated with commercial surrogacy.

Key Provisions of the Surrogacy (Regulation) Act, 2021:

Altruistic Surrogacy: The Act permits only altruistic surrogacy, where the surrogate mother receives no monetary compensation beyond medical expenses and insurance coverage during pregnancy. Commercial surrogacy, involving financial transactions beyond these costs, is strictly prohibited.

Eligibility Criteria for Intended Parents:

Married Couples: Only Indian heterosexual couples married for at least five years are eligible. The woman must be aged between 23 and 50, and the man between 26 and 55. Additionally, the couple should not have any surviving children, except in cases where the existing child is mentally or physically challenged or suffers from a life-threatening disorder.

Single Women: Single women are permitted to opt for surrogacy only if they are widowed or divorced and aged between 35 and 45. Single men are not eligible for surrogacy under this Act.

Eligibility Criteria for Surrogate Mothers: The surrogate must be a married woman aged between 25 and 35, having at least one biological child. She is allowed to be a surrogate only once in her lifetime.

Recent Amendments and Developments:

Inclusion of Donor Gametes: In 2022, the Ministry of Health and Family Welfare amended the Surrogacy (Regulation) Rules to allow the use of donor gametes—ova or eggs—during the surrogacy process. This change aims to benefit married couples facing specific medical conditions that prevent them from producing viable gametes.

Legal Challenges and Discussions: The Act has faced criticism for its restrictive provisions, particularly concerning the exclusion of LGBTQIA+ individuals and single men from accessing surrogacy services. Legal experts argue that these restrictions may infringe upon fundamental rights guaranteed by the Indian Constitution.

These reforms and ongoing debates highlight India's efforts to balance ethical considerations with the reproductive rights of individuals, ensuring that surrogacy practices are conducted within a regulated and ethical framework.

05/03/2025

Surrogacy is often seen as a boon for several reasons:

1. A Path to Parenthood for the Infertile: For couples or individuals who cannot conceive due to infertility, surrogacy offers a unique opportunity to have a biological child. It can be a last resort after failed fertility treatments.

2. Inclusivity for Same-Sex Couples and Single Parents: Surrogacy provides an avenue for same-sex couples, especially male couples, and single parents to have children who are biologically related to them, something not possible through other means.

3. Legal Certainty: Surrogacy, especially gestational surrogacy, provides clear legal frameworks where the intended parents are recognized as the legal parents from the outset, reducing uncertainties that might occur in other family-building methods like adoption.

4. Emotional Fulfillment for Surrogates: Surrogates often express that they are driven by the joy of helping someone experience parenthood. This act of giving is deeply fulfilling and creates a profound emotional connection between the surrogate and the intended parents.

5. Controlled Process: Surrogacy, particularly through reputable agencies, is a highly regulated and well-supported process involving medical, legal, and psychological support for all parties involved. This ensures safety and ethical practices.

Surrogacy, thus, serves as a vital solution for various people, enabling them to create families and experience the joys of parenthood that might otherwise be out of reach.

05/03/2025

Surrogacy approval for a divorced woman can vary depending on the country's laws and regulations. Some countries or jurisdictions may have specific requirements or restrictions for single or divorced individuals seeking surrogacy.

General Considerations:

1. Legal Requirements: Some countries require proof of medical necessity, marital status, or age limits for surrogacy.

2. Clinic Policies: Fertility clinics may have their own policies regarding who they accept as surrogacy candidates.

3. Legal Agreements: Legal contracts between the surrogate and intended parent(s) are crucial. For divorced women, clarity on custody and parental rights is essential.

India-Specific Guidelines:

Surrogacy Regulation Act, 2021: In India, the law permits surrogacy only for married couples. Single women, whether divorced or unmarried, are generally not allowed to pursue surrogacy under the current legal framework.

Exceptions: There may be exceptions in special circumstances, but these require approval from relevant authorities and legal guidance.

If you are considering surrogacy, consulting with a legal expert in your country is highly recommended to understand your rights and options.

03/03/2025

and Scope of Surrogacy

Surrogacy is an assisted reproductive technology (ART) method in which a woman (the surrogate) carries and delivers a child for another individual or couple (intended parents). It is an essential solution for those unable to conceive naturally due to medical, genetic, or personal reasons.

Importance of Surrogacy

1. Solution for Infertility – Surrogacy helps couples who struggle with infertility due to medical conditions like uterine abnormalities, recurrent pregnancy loss, or other reproductive issues.

2. Hope for LGBTQ+ Couples – Same-sex couples, especially male couples, can have biological children through surrogacy using donor eggs and s***m.

3. Option for Single Parents – Surrogacy allows single men and women to have biological children without the need for a partner.

4. Medical Benefits – Women with serious health risks in pregnancy (e.g., heart disease, cancer survivors) can have children without endangering their health.

5. Legal Recognition – Many countries and states recognize surrogacy legally, making it a safe and structured way to build families.

Scope of Surrogacy

1. Growing Global Demand – With increasing infertility rates and changing social structures, surrogacy is becoming more widely accepted worldwide.

2. Medical Advancements – Improved reproductive technologies, such as IVF and genetic screening, have increased the success rate of surrogacy.

3. International Surrogacy – Some countries allow cross-border surrogacy, enabling intended parents to seek surrogacy in countries where laws and medical facilities are favorable.

4. Economic Impact – Surrogacy has created a significant industry, providing employment to healthcare professionals, legal experts, and surrogate mothers.

5. Ethical and Legal Challenges – While surrogacy is a blessing for many, ethical concerns such as the exploitation of surrogates and legal disputes over parental rights remain challenges that require proper regulation.

Conclusion

Surrogacy is a revolutionary reproductive method that offers hope to many aspiring parents. While it has ethical and legal complexities, its benefits in addressing infertility and expanding family-building options make it an essential component of modern reproductive healthcare.