India has long been a hub for assisted reproductive technology (ART) and surrogacy services, attracting individuals and couples from around the world seeking fertility solutions. However, the rapid growth of this industry has also raised concerns about ethical practices, exploitation, and the need for stringent regulations. In response to these challenges, the Indian government enacted two landmark legislations: the Surrogacy (Regulation) Act 2021 and Assisted Reproductive Technology (Regulation) Act 2021. These laws aim to establish a clear legal framework for ART and surrogacy practices in India, ensuring the protection of all parties involved.

This article explores the key provisions of these acts, their implications for the ART and surrogacy industry, and their significance for intended parents, surrogates, and healthcare providers.

Background and Need for Regulation: Surrogacy (Regulation) Act 2021 and Assisted Reproductive Technology (Regulation) Act 2021

Before the enactment of the Surrogacy Regulation Act 2021 and ART Regulation Act 2021, the fertility industry in India operated in a largely unregulated environment. While this lack of regulation provided flexibility and opportunities for growth, it also led to several issues, including unethical practices, exploitation of surrogates, and the commercialization of reproduction.

1. Concerns Leading to Regulation:

• Exploitation of Surrogates: In the absence of strict regulations, surrogates, particularly those from economically disadvantaged backgrounds, were often exploited. They faced inadequate compensation, poor healthcare, and lack of legal protection.
• Ethical Issues: The commercialization of surrogacy raised significant ethical concerns, with instances of surrogacy arrangements being used for profit rather than genuine reproductive needs.
• Lack of Legal Clarity: The absence of a legal framework led to disputes over parental rights, citizenship, and custody, creating a need for clear and enforceable laws.

To address these concerns, the Indian government introduced the Surrogacy Regulation Bill in 2019 and the ART Regulation Bill in 2020, both of which were passed by the Parliament in 2021, leading to the formation of the Surrogacy Regulation Act 2021 and ART Regulation Act 2021.

The Surrogacy Regulation Act 2021

The Surrogacy Regulation Act 2021 was enacted to regulate the practice of surrogacy in India, with the primary aim of protecting the rights of surrogates, intended parents, and children born through surrogacy. The Act prohibits commercial surrogacy and permits only altruistic surrogacy under specific conditions.

1. Key Provisions of the Surrogacy Regulation Act 2021:

• Altruistic Surrogacy Only: The Act allows only altruistic surrogacy, where the surrogate mother is not compensated beyond medical expenses and insurance coverage. Commercial surrogacy, where the surrogate is paid for carrying the child, is strictly prohibited.
• Eligibility Criteria: The Act specifies strict eligibility criteria for both intending couples and surrogate mothers. Only Indian citizens who have been married for at least five years, are between 23 and 50 years of age (for women) or 26 and 55 years of age (for men), and are certified as infertile by a competent authority are eligible to opt for surrogacy. The surrogate mother must be a close relative of the intending couple, be married, have at least one biological child, and be between 25 and 35 years old.
• Surrogacy Certificate: Intending couples must obtain a certificate of essentiality and a certificate of eligibility from the appropriate authority. The certificate of essentiality requires proof of infertility, a magistrate’s order for parentage and custody, and insurance coverage for the surrogate mother.
• Prohibition of Certain Activities: The Act prohibits certain activities, including commercial surrogacy, abandonment of the surrogate child, exploitation of surrogate mothers, and the sale or import of human embryos or gametes for surrogacy.
• Establishment of Surrogacy Boards: The Act mandates the establishment of National and State Surrogacy Boards to oversee the implementation of the law, monitor surrogacy clinics, and ensure compliance with the regulations.

2. Implications for Surrogacy in India:

• Protection of Surrogates: The Act is designed to protect surrogate mothers from exploitation by ensuring they are not financially exploited and have access to proper healthcare and insurance.
• Ethical Surrogacy Practices: By restricting surrogacy to altruistic arrangements, the Act aims to eliminate the commercialization of surrogacy and promote ethical practices in the industry.
• Legal Clarity: The Act provides a clear legal framework for surrogacy arrangements, addressing issues related to parentage, custody, and the rights of all parties involved.

3. Criticism and Challenges:

• Restrictive Eligibility Criteria: Critics argue that the Act’s strict eligibility criteria may exclude many deserving couples from accessing surrogacy, particularly single parents, LGBTQ+ individuals, and couples in non-traditional relationships.
• Limited Options for Surrogates: The requirement that surrogate mothers must be close relatives of the intending couple may limit the availability of surrogates and create challenges for couples without eligible relatives.
• Potential for Unregulated Practices: Some experts fear that the restrictions on commercial surrogacy may drive the practice underground, leading to unregulated and potentially unsafe surrogacy arrangements.

The Assisted Reproductive Technology (ART) Regulation Act 2021

The ART Regulation Act 2021 was enacted to regulate the use of assisted reproductive technologies in India, including IVF, ICSI, gamete donation, and embryo transfer. The Act aims to ensure the safe and ethical use of ART, protect the rights of all parties involved, and establish standards for ART clinics and banks.

1. Key Provisions of the ART Regulation Act 2021:

• Regulation of ART Clinics and Banks: The Act mandates the registration and regulation of all ART clinics and banks in India. Clinics and banks must adhere to specific standards and guidelines to ensure the safety and efficacy of ART procedures.
• Consent and Counseling: The Act requires informed consent from all parties involved in ART procedures, including donors, intended parents, and surrogates. Counseling must be provided to ensure that all parties understand the risks, benefits, and implications of ART.
• Prohibition of Sex Selection: The Act strictly prohibits sex selection and any ART procedures that involve the selection of embryos based on sex. This provision is intended to prevent gender discrimination and ensure ethical practices in ART.
• Donor Anonymity and Rights: The Act outlines the rights and responsibilities of gamete donors, including the protection of their anonymity and the prohibition of payment beyond reasonable expenses. Donors are also required to undergo medical screening to ensure the safety of the donated gametes.
• Establishment of ART Authorities: The Act establishes National and State ART Authorities to oversee the regulation of ART clinics and banks, monitor compliance with the law, and address grievances related to ART procedures.

2. Implications for the ART Industry:

• Standardization and Quality Control: The Act aims to standardize ART practices and ensure that clinics and banks operate according to established guidelines. This is expected to improve the quality of ART services and reduce the risk of malpractice.
• Protection of Patient Rights: The Act provides a legal framework for protecting the rights of intended parents, surrogates, and donors. This includes ensuring informed consent, protecting donor anonymity, and prohibiting unethical practices such as sex selection.
• Transparency and Accountability: The Act promotes transparency in ART practices by requiring clinics and banks to maintain detailed records, undergo regular inspections, and report their activities to the appropriate authorities.

3. Criticism and Challenges:

• Impact on Accessibility: Some critics argue that the stringent regulations and registration requirements may increase the cost of ART services, making them less accessible to lower-income individuals and couples.
• Concerns About Donor Anonymity: While the Act aims to protect donor anonymity, there are concerns that this may limit the ability of children born through ART to access information about their genetic origins in the future.
• Enforcement and Compliance: Ensuring compliance with the Act’s provisions may be challenging, particularly in rural areas where access to ART services is limited and regulatory oversight may be less stringent.

The Intersection of the Surrogacy Regulation Act 2021 and ART Regulation Act 2021

The Surrogacy Regulation Act 2021 and ART Regulation Act 2021 are complementary laws that together provide a comprehensive legal framework for ART and surrogacy practices in India. While the Surrogacy Regulation Act focuses specifically on the regulation of surrogacy arrangements, the ART Regulation Act covers a broader range of assisted reproductive technologies.

1. Impact on the Surrogacy Industry:

• Increased Regulation: The combined effect of these two laws is increased regulation of the surrogacy industry, with stricter guidelines for both surrogates and intended parents. This is expected to improve the ethical standards of surrogacy arrangements and protect the rights of all parties involved.
• Integration of ART and Surrogacy: Since surrogacy often involves the use of ART, the two acts work together to ensure that ART procedures used in surrogacy arrangements are safe, ethical, and compliant with the law.

2. Challenges and Opportunities:

• Balancing Regulation and Accessibility: While the laws are intended to protect the rights and welfare of all parties involved, there is a need to balance regulation with accessibility, ensuring that deserving individuals and couples can still access ART and surrogacy services.
• Promoting Ethical Practices: The laws provide an opportunity to promote ethical practices in the fertility industry, reduce the risk of exploitation, and establish India as a leader in safe and regulated ART

Please note that per the Surrogacy (Regulation) Act 2021, commercial surrogacy is banned in India. Our website (Gestational Surrogacy India) content is under service for current updates and does not offer the process to any person against laws. For more information :

Kindly Open Surrogacy (Regulation) Act 2021: Pls Click Here.
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