Surrogacy in India

Prior to the decree number 462, issued by the Ministry of External Affairs of the
Government of India and signed by the then Under Secretary to the Government of
India in 2015. Any couple of foreign origin could come to India for surrogacy
purposes, they could do so by acquiring a type of visa which was only obtained
when they only intended to travel to the country for medical reasons, this type of
visa was known as the Medical Visa.
In order to apply for this visa with the intention of surrogacy in India, interested
couples had to fulfil the following conditions:
1. They had to be respectively, male and female duly married, and the marriage
had to be at least two years in duration.
2. Possess a letter from the Embassy of the foreign country in India or the
Ministry of External Affairs of the country of their respective country, clearly
stating that: (a) the country recognises surrogacy, (b) the permission to enter
their country for the surrogate child/children, recognising them as biological
children of the surrogate couple and of course, the application document for the
medical visa.
3. The couple had to undertake to take care of the surrogate child, submit an
agreement made between the applicant couple and the intended surrogate
mother, notarised by a notary public in India or the country of origin of the
couple, where the latter undertakes to cover the medical expenses of the
surrogate mother and her accessories.
4. To undergo medical treatment at ART (Assisted Reproductive Technology)
Clinics1 registered and recognised by the ICMR (Indian Council of Medical
Research)

1
https://main.icmr.nic.in/sites/default/files/art/Updated_list_of_Approved_ART_Clinics04082021.pdf
Foreign couples whose wife or husband is of Indian origin or is an OCI 2 /PIO3 card
holder (male or female) do not require a specific medical visa to carry out
surrogacy.
Following the coming into force of Circular number 462 4, on November 03, 2015,
the Ministry of External Affairs, Government of India prohibited:
(a) the issuance of Medical Visas or visas granting entry of foreign national into
the country with intentions to commissioning surrogacy at all Indian
Missions/Post to the foreign national, if any, granted by the FRROs/FROs to OCI
cardholder5.
(b) the issuance of Overseas Citizen of India (OCI) cards by the Foreigners
Regional Registration Officers (FRROs)/ Foreigners Registration Officers
(FROs);
(c) and the issuance of permissions granted by the FRROs/FROs to the
child/children to be born through surrogacy to foreign national including OCI
cardholders.
Prior to the publication of The Surrogacy (Regulation) Act, 2019, it was
understood:
(a) that surrogacy is a contractual undertaking whereby the natural or
surrogate mother, for a fee, agrees to conceive a child through artificial
insemination with the sperm of the natural father, to bear and deliver the
child to the natural father, and to terminate all of her parental rights after the
child's birth
b) That the child/children born in day, automatically obtained Indian
nationality prioritising ius domicilii, having all the rights and benefits of the
State.

2
Overseas Citizen of India (OCI) Card. A foreign national, who was eligible to become citizen of
India on January 26th,1950 or was a citizen of India on or at anytime after January 26th,1950
 or belonged to a territory that became part of India after August 15 th,1947 is eligible for
registration as Overseas Citizen of India (OCI).
 Minor children of such person are also eligible for OCI. However, if the applicant had ever
been a citizen of Pakistan or Bangladesh, he/she will not be eligible for OCI.
3
A Person of Indian Origin (PIO) means a foreign citizen (except a national of Pakistan,
Afghanistan Bangladesh, China, Iran, Bhutan, Sri Lanka and Nepal)
 who at any time held an Indian passport or;
 who or either of their parents/ grand parents/ great grand parents was born and
permanently resident in India as defined in Government of India Act, 1935 and other
territories that became part of India thereafter provided neither was at any time a citizen of
any of the aforesaid countries ( as referred above); or
 Who is a spouse of a citizen of India or a PIO.
4
https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf
5
From the date issue of the Circular and date of receipt of the Circular, all the permissions granted
should be cancelled and the applicants may be informed of the position immediately.
After the publication of this law on 25 December 2021, the Ministry of Law and
Justice formalised the concepts of surrogacy, the prohibition of surrogacy as an act
of commerce and the delimitation of the types of surrogacy that can be carried out:
Understanding surrogacy as "a practice whereby one woman bears and gives birth
to a child for an intending couple with the intention of handing over such child to
the intending couple after the birth."
CHAPTER III
REGULATION OF SURROGACY AND SURROGACY PROCEDURES6
“(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken,
performed or availed of, except for the following purposes, namely:—
(a) when an intending couple has a medical indication necessitating gestational
surrogacy: Provided that a couple of Indian origin7 or an intending woman8
who intends to avail surrogacy, shall obtain a certificate of recommendation
from the Board on an application made by the said persons in such form and
manner as may be prescribed.

Explanation.—For the purposes of this sub-clause and item (I) of subclause

(a) of clause (iii) the expression “gestational surrogacy” means a practice
whereby a surrogate mother carries a child for the intending couple through
implantation of embryo in her womb and the child is not genetically related to
the surrogate mother;
(b) when it is only for altruistic surrogacy purposes9.
(c) when it is not for commercial purposes10 or for commercialisation of
surrogacy or surrogacy procedures;
(d) when it is not for producing children for sale, prostitution or any other form
of exploitation; and
6
MINISTRY OF LAW AND JUSTICE (Legislative Department). (2021). The Surrogacy
(Regulation) Act, 2019 [PDF]. PUBLISHED BY AUTHORITY.
https://dhr.gov.in/sites/default/files/Surrogacy%20Regulation%20ACT%202021.pdf

7
“couple” means the legally married Indian man and woman above the age of 21 years and 18
years respectively;
8
“intending woman” means an Indian woman who is a widow or divorcee between the age of 35
to 45 years and who intends to avail the surrogacy;
9
“altruistic surrogacy” means the 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;
10
“commercial surrogacy” means commercialisation of surrogacy services or procedures or its
component services or component procedures including selling or buying of human embryo or
trading in the sale or purchase of human embryo or gametes or selling or buying or trading the
services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or
monetary incentive in cash or kind, to the surrogate mother or her dependents or her
representative, except the medical expenses and such other prescribed expenses incurred on the
surrogate mother and the insurance coverage for the surrogate mother;
 (e) any other condition or disease as may be specified by regulations made by
the Board11;”

In this context, it follows that foreigners are not allowed to perform any act of
surrogacy within the territory of India, and the law also sets out the penalties
applicable to those who act contrary to this recent law:
CHAPTER VII
OFFENCES AND PENALTIES
38. (1) No person, organisation, surrogacy clinic, laboratory or clinical
establishment of any kind shall—
(a) undertake commercial surrogacy, provide commercial surrogacy or
its related component procedures or services in any form or run a racket
or an organised group to empanel or select surrogate mothers or use
individual brokers or intermediaries to arrange for surrogate mothers and for
surrogacy procedures, at such clinics, laboratories or at any other place;
(e) sell human embryo or gametes for the purpose of surrogacy and
run an agency, a racket or an organisation for selling, purchasing or
trading in human embryos or gametes for the purpose of surrogacy;
(f) import or shall help in getting imported in, whatsoever manner, the
human embryo or human gametes for surrogacy or for surrogacy
procedures; and
40. Any intending couple or intending woman or any person who seeks the
aid of any surrogacy clinic, laboratory or of a registered medical
practitioner, gynaecologist, paediatrician, embryologist or any other
person for not following the altruistic surrogacy or for conducting surrogacy
procedures for commercial purposes shall be punishable with imprisonment
for a term which may extend to five years and with fine which may
extend to five lakh rupees for the first offence and for any subsequent
offence with imprisonment which may extend to ten years and with fine
which may extend to ten lakh rupees.
41. Whoever contravenes any of the provisions of this Act, rules or
regulations made thereunder for which no penalty has been provided in this
Act, shall be punishable with imprisonment for a term which may extend
to three years and with fine which may extend to five lakh rupees and in
the case of continuing contravention with an additional fine which may extend
to ten thousand rupees for every day during which such contravention
continues after conviction for the first such contravention.

The only exception that emerges from the analysis of the Constitution of India
could be on nationality, according to the Indian constitution, they are Indian
citizens:

11
“Board” means the National Assisted Reproductive Technology and Surrogacy Board
 THE CONSTITUTION OF INDIA12
[May, 2022]
PART II
CITIZENSHIP
1. Citizenship at the commencement of the Constitution. —At the
commencement of this Constitution, every person who has his domicile in
the territory of India and—
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less
than five years immediately preceding such commencement, shall be a citizen
of India.

6. Rights of citizenship of certain persons who have migrated to India from

Pakistan.—Notwithstanding anything in article 5, a person who has migrated to
the territory of India from the territory now included in Pakistan shall be deemed
to be a citizen of India at the commencement of this Constitution if—
(a) he or either of his parents or any of his grand-parents was born in India as
defined in the Government of India Act, 1935 (as originally enacted); and
(b)(i) in the case where such person has so migrated before the nineteenth day
of July, 1948, he has been ordinarily resident in the territory of India since the
date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day
of July, 1948, he has been registered as a citizen of India by an officer appointed
in that behalf by the Government of the Dominion of India on an application
made by him therefor to such officer before the commencement of this
Constitution in the form and manner prescribed by that Government.
Provided that no person shall be so registered unless he has been resident in
the territory of India for at least six months immediately preceding the date of his
application
9. Persons voluntarily acquiring citizenship of a foreign State not to be
citizens.— No person shall be a citizen of India by virtue of article 5, or be
deemed to be a citizen of India by virtue of article 6 or article 8, if he has
voluntarily acquired the citizenship of any foreign State.

The aforementioned exception is that those persons who decided to migrate

from the territory of India to the territory of Pakistan, but who were born
primarily in the former state, are recognised as Indian citizens and have all
12
Vasishta, R (2022). The Constitution of India.
https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/
2023/05/2023050195.pdf
the rights of citizenship. This, in our case, shows that an Indian citizen
residing in Pakistan is allowed to come to India for the purpose of surrogacy,
provided of course, the conditions are fulfilled in the body of The Surrogacy
(Regulation) Act, 2021.