SURROGACY (REGULATION) ACT, 2021
[Act No. 47 of 2021]
[25th December, 2021]
PREAMBLE
An Act to constitute National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Seventy-second Year of the Republic of India as follows:--
(1) This Act may be called the Surrogacy (Regulation) Act, 2021.
(2) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint.
_______________________________
1. w.e.f. 25.01.2022, vide Notification No. SO292(E), dated 20.01.2022.
(1) In this Act, unless the context otherwise requires,--
(a) "abandoned child" means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry;
(b) "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;
(c) "appropriate authority" means the appropriate authority appointed under Section 35;
(d) "Assisted Reproductive Technology Act" means the Assisted Reproductive Technology (Regulation) Act, 2021;
(e) "Board" means t
On and from the date of commencement of this Act,--
(i) no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures;
(ii) no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form;
(iii) no surrogacy clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment, who does not possess such qualifications as may be prescribed;
(iv) no registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person
The Surrogacy (Regulation) Act, 2021 aims to regulate surrogacy practices in India, ensuring ethical standards and protecting the rights of all parties involved, particularly the surrogate mothers and the children born through surrogacy. Section 3 specifically addresses the prohibition and regulation of surrogacy clinics.
Section 3 of the Surrogacy (Regulation) Act, 2021 prohibits any surrogacy clinic from conducting or associating with surrogacy procedures unless it is registered under the Act. This section outlines the requirements for registration and the conditions under which clinics may operate.
The scope of Section 3 extends to all surrogacy clinics operating within India, ensuring that they adhere to the legal framework established by the Act. It aims to eliminate unregulated and potentially exploitative practices in surrogacy.
Violations of Section 3 can lead to severe penalties, including imprisonment and fines. Specifically, conducting surrogacy without registration can result in imprisonment for up to 10 years and substantial fines.
This commentary provides an overview of Section 3 of the Surrogacy (Regulation) Act, 2021, highlighting its key provisions, implications, and the legal framework established to regulate surrogacy practices in India.
On and from the date of commencement of this Act,--
(i) no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clause (iii);
(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 origin or an intending woman 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
The Surrogacy (Regulation) Act, 2021 aims to regulate surrogacy practices in India, ensuring that surrogacy is conducted ethically and primarily for altruistic purposes. Section 4 specifically addresses the regulation of surrogacy and the procedures involved, establishing a framework for the practice.
Section 4 of the Surrogacy (Regulation) Act, 2021 outlines the conditions under which surrogacy can be conducted, emphasizing that no place, including surrogacy clinics, shall be used for surrogacy procedures unless it complies with the regulations set forth in the Act.
The scope of Section 4 encompasses:- The prohibition of commercial surrogacy.- The establishment of eligibility criteria for intending couples and surrogate mothers.- The requirement for surrogacy clinics to be registered and regulated by appropriate authorities.
Violations of the provisions outlined in Section 4 can lead to severe penalties, including imprisonment and fines. Specifically, engaging in commercial surrogacy can result in imprisonment for up to 10 years and fines up to INR 10 lakhs.
No person including a relative or husband of a surrogate mother or intending couple or intending woman shall seek or encourage to conduct any surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of section 4.
Section 5 of the Surrogacy (Regulation) Act, 2021, establishes the prohibition against conducting surrogacy procedures, thereby aiming to regulate and prevent unethical practices associated with surrogacy in India.
Section 5 explicitly prohibits any person, including relatives or husbands of surrogate mothers, intending couples, or intending women, from seeking or encouraging the conduct of surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) of Section 4.
Note: The analysis draws from multiple sources to provide a comprehensive legal commentary on Section 5, emphasizing its prohibitory and regulatory intent within the Surrogacy (Regulation) Act, 2021.
(1) No person shall seek or conduct surrogacy procedures unless he has--
(i) explained all known side effects and after effects of such procedures to the surrogate mother concerned; and
(ii) obtained in the prescribed form, the written informed consent of the surrogate mother to undergo such procedures in the language she understands.
(2) Notwithstanding anything contained in sub-section (1), the surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of human embryo in her womb.
The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like.
A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.
The number of oocytes or human embryos to be implanted in the uterus of the surrogate mother for the purpose of surrogacy, shall be such as may be prescribed.
No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy except in such conditions as may be prescribed.
(1) No person shall establish any surrogacy clinic for undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly registered under this Act.
(2) Every application for registration under sub-section (1) shall be made to the appropriate authority in such form, manner and shall be accompanied by such fees as may be prescribed.
(3) Every surrogacy clinic which is conducting surrogacy or surrogacy procedures, partly or exclusively, referred to in clause (ii) of section 4 shall, within a period of sixty days from the date of appointment of appropriate authority, apply for registration:
Provided that such clinic shall cease to conduct any such counselling or procedures on the expiry of six months from the date of commencement of this Act, unless such clinic has applied for registration and is so registered separately or till such application is disp
Section 11 of the Surrogacy (Regulation) Act, 2021, primarily addresses the mandatory registration of surrogacy clinics to regulate the practice of surrogacy in India. It aims to ensure that surrogacy procedures are performed ethically, legally, and transparently by authorized entities.
Section 11 mandates that no person shall establish or run a surrogacy clinic unless it is duly registered under the Act. The section emphasizes the importance of registration as a prerequisite for legally undertaking surrogacy procedures.
This section applies to all individuals or entities intending to establish or operate surrogacy clinics in India, ensuring that only registered clinics conduct surrogacy procedures, thereby promoting ethical practices and safeguarding the welfare of surrogate mothers and commissioning parties.
While Section 11 itself primarily deals with registration, contravention of this provision is punishable under the broader penal provisions of the Act, which include imprisonment and fines. Specifically, non-compliance can lead to penalties such as imprisonment for up to 10 years and fines up to Rs. 10 lakh, as per other sections of the Act dealing with violations [Source: "Exploring India's Surrogacy Act"].
Note: This commentary synthesizes information from the provided sources, focusing on Section 11's provisions, scope, essential elements, and legal implications.
(1) The appropriate authority shall after holding an enquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules and regulations made thereunder, grant a certificate of registration to the surrogacy clinic, within a period of ninety days from the date of application received by it, in such form, on payment of such fees and in such manner, as may be prescribed.
(2) Where, after the inquiry and after giving an opportunity of being heard to the applicant, the appropriate authority is satisfied that the applicant has not complied with the requirements of this Act or the rules or regulations made thereunder, it shall, for reasons to be recorded in writing, reject the application for registration.
(3) Every certificate of registration shall be valid for a period of three years and shall be renewed in such manner and on payment of such fees as may be p
(1) The appropriate authority may, suo motu or on receipt of a complaint, issue a notice to the surrogacy clinic to show cause as to why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
(2) If after giving a reasonable opportunity of being heard to the surrogacy clinic, the appropriate authority is satisfied that there has been a breach of the provisions of the Act or the rules or regulations made thereunder, it may, without prejudice to any criminal action that it may take against such clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1) and (2), if the appropriate authority is of the opinion that it is necessary or expedient to do so in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any s
The surrogacy clinic or the intending couple or the intending woman may, within a period of thirty days from the date of receipt of the communication relating to order of rejection of application, suspension or cancellation of registration passed by the appropriate authority under section 13 and communication relating to rejection of the certificates under section 4, prefer an appeal against such order to--
(a) the State Government, where the appeal is against the order of the appropriate authority of a State;
(b) the Central Government, where the appeal is against the order of the appropriate authority of a Union territory, in such manner as may be prescribed.
There shall be established a Registry to be called the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.
Legal Comments
"Purpose of Section 15" - Establishes a national registry for ART and Surrogacy to monitor implementation and enforcement; frames data collection and reporting obligations - [Source: "K. Kalaiselvi VS Chennai Port Trust, rep by the Chairman - 2013 0 Supreme(Mad) 1184" and general Act context]
"Section 15 focus" - Creates a National Registry of ART and Surrogacy; requires data submission and maintenance to ensure transparency, accountability, and oversight of surrogacy practices - [Source: "": The Surrogacy (Regulation) Act, 2021 | India Code (Scheme of registry)]
"Relation to Rule 14 compatibility" - Section 15 registry framework supports monitoring of Rule 14 medical indications and eligibility processes by tying data to reporting requirements; aids evaluation of medical indications necessitating gestational surrogacy - [Source: "V. Girija VS State of Tamil Nadu Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Chennai - 2024 0 Supreme(Mad) 462" and "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"]
"Scope of recording" - Registry encompasses information on surrogacy clinics, surrogate mothers, intending couples, and outcomes to enable oversight and potential reforms - [Source: "": The Surrogacy (Regulation) Act, 2021]
"Punitive/penal alignment relevance" - Data from the Registry informs enforcement actions under the Act; while Section 15 itself is administrative, it underpins compliance through traceability of violations (e.g., illegal surrogacy, commercial surrogacy). Practical impact evidenced via penalties in Sec 38-41 and related provisions - [Source: "Rajitha P.V., W/o. Santhosh M. vs Union Of India, Represented By Its Secretary, Ministry Of Health And Family Welfare - 2025 0 Supreme(Ker) 2526"; "Amisha Girish Ramchandani VS Divisional Manager - Current Civil Cases (2016)"]
"Interplay with National/State Boards" - The registry complements the Board's role by providing empirical inputs; supports national and state-level data-driven decisions for eligibility, licensing, and sanctioning clinics - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327"]
"Data privacy and surrogate/child rights" - While Section 15 does not itself create rights, its data collection must be balanced with surrogate and child rights protections; confidentiality and lawful processing implied by statutory framework - [Source: "H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225": Baby Manji Yamada framework and rights discussion; "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"]
"Impact on eligibility certificate process" - Registry outputs may influence eligibility determinations by tracking clinic compliance, medical indications, and birth outcomes; supports consistent decision-making in Section 4(iii)(a)-(c) contexts - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793"]
"Administrative efficiency aim" - The Registry is designed to streamline reporting to reduce delays in processing eligibility certificates and approvals; enhances expeditious processing through standardized data formats - [Source: "Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327"; "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"]
"Interaction with Form 2/Form 11 requirements" - While Form 2 and Form 11 govern consent and certification at clinic level, Section 15 ensures centralized aggregation of data generated under those forms for national oversight - [Source: "V. Girija VS State of Tamil Nadu Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Chennai - 2024 0 Supreme(Mad) 462"; "Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327"]
"Transitional/regulatory coherence" - The Registry supports continuity as the Act evolves (e.g., post-2022 rules and amendments); ensures data continuity for ongoing surrogacy arrangements during regulatory shifts - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225"]
"Benchmarking and reform potential" - Collected data can serve as a baseline for policy evaluation, enabling evidence-based amendments to age limits, donor gamete norms, or eligibility criteria if warranted by trends - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "Seema Chakraborty, W/o. Bhaskar Bhattacharjee @ Bashkar Bhattacharjee vs Union Of India, Represented By Its Secretary To The Government, Department Of Health And Family Welfare - 2025 0 Supreme(Gau) 2130"]
"Compliance indicators" - Registry metrics may include number of surrogacy clinics registered, number of eligibility certificates issued, adverse events, and compliance with informed consent and medical fitness requirements - [Source: "H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225"; "Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327"]
"Enforcement facilitation" - By providing auditable records, the Registry underpins law enforcement and regulatory actions against violations such as illegal surrogacy, abandonment, or non-compliance with Section 6 (informed consent) and Section 8 (child rights) - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793"]
"Public health perspective" - Data collection aligns surrogacy oversight with broader ART regulation, supporting safe reproductive practices and safeguarding maternal/child health as emphasized in Rule 14 and related sections - [Source: "V. Girija VS State of Tamil Nadu Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Chennai - 2024 0 Supreme(Mad) 462"; "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"]
"Judicial consideration context" - In cases challenging age restrictions or specific forms, registry data may inform courts about implementation realities and compliance levels, aiding proportionate and purposive interpretations of the Act - [Source: "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"; "JAN BALAZ VS ANAND MUNICIPALITY - 2009 0 Supreme(Guj) 609"]
"Interim guidance role" - The Registry can incorporate or reflect interim judicial/mat court orders and Supreme Court directives by showing how compliance is scaled during pendency of key constitutional challenges - [Source: "H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225"; "Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327"]
"Operational note" - Section 15 prescribes the establishment of a National Registry but leaves room for the Board to specify formats, timelines, and reporting modalities through rules, ensuring adaptability to evolving ART/Surrogacy practice - [Source: "": The Surrogacy (Regulation) Act, 2021; "Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269"]
"Impact on donor-related issues" - While not explicit in Section 15, registry data on surrogacy arrangements contributes to transparency regarding donor gamete usage, donor anonymity, and related welfare concerns under the Act's broader framework - [Source: "H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225"; "V. Girija VS State of Tamil Nadu Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Chennai - 2024 0 Supreme(Mad) 462"]
"Reference to related statutory structure" - Section 15 sits within Chapter VII framework on offences and penalties by enabling regulatory oversight; it complements Sections on registration, consent, eligibility, and child rights by ensuring standardized data capture - [Source: ""; "Rajitha P.V., W/o. Santhosh M. vs Union Of India, Represented By Its Secretary, Ministry Of Health And Family Welfare - 2025 0 Supreme(Ker) 2526"]
The National Assisted Reproductive Technology and Surrogacy Registry referred to in section 15 and to be established under section 9 of the Assisted Reproductive Technology Act shall be the National Registry for the purposes of this Act and the functions to be discharged by the said Registry under the Assisted Reproductive Technology Act shall, mutatis mutandis, apply.
(1) The Central Government shall, by notification, constitute a Board to be known as the National Assisted Reproductive Technology and Surrogacy Board to exercise the powers and perform the functions conferred on the Board under this Act.
(2) The Board shall consist of--
(a) the Minister in-charge of the Ministry of Health and Family Welfare, the Chairperson, ex officio;
(b) the Secretary to the Government of India in-charge of the Department dealing with the surrogacy matter, Vice-Chairperson, ex officio;
(c) three women Members of Parliament, of whom two shall be elected by the House of the People and one by the Council of States, Members, ex officio;
(d) three Members of the Ministries of the Central Government in-charge of Women and Child Development, Legislative Department in the Ministry of Law and Justice and the Mini
(1) The term of office of a Member, other than an ex officio Member, shall be--
(a) in case of nomination under clause (c) of sub-section (2) of section 14, three years:
Provided that the term of such Member shall come to an end as soon as the Member becomes a Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the House of the People, or the Deputy Chairman of the Council of States or ceases to be a Member of the House from which she was elected; and
(b) in case of appointment under clause (f) of sub-section (2) of section 17, three years:
Provided that the person to be appointed as Member under this clause shall be of such age as may be prescribed.
(2) Any vacancy occurring in the office whether by reason of his death, resignation or inability to discharge his functions owing to illnes
(1) The Board shall meet at such places and times and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be determined by the regulations:
Provided that the Board shall meet at least once in six months.
(2) The Chairperson shall preside at the meeting of the Board and if for any reason the Chairperson is unable to attend the meeting of the Board, the Vice-Chairperson shall preside at the meetings of the Board.
(3) All questions which come up before any meeting of the Board shall be decided by a majority of the votes of the members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the Vice-Chairperson shall have a second or casting vote.
(4) The Members, other than ex officio Members, shall receive only compensatory
No act or proceeding of the Board shall be invalid merely by reason of--
(a) any vacancy in, or any defect in the constitution of, the Board; or
(b) any defect in the appointment of a person acting as a Member of the Board; or
(c) any irregularity in the procedure of the Board not affecting the merits of the case.
(1) A person shall be disqualified for being appointed and continued as a Member if, he--
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, which in the opinion of the Central Government, involves moral turpitude; or
(c) has become physically or mentally incapable of acting as a Member; or
(d) has acquired such financial or other interest, as is likely to affect prejudicially his functions as a Member; or
(e) has so abused his position, as to render his continuance in office prejudicial to the public interest; or
(f) is a practicing member or an office-bearer of any association representing surrogacy clinics, having financial or other interest likely to affect prejudicially, his function as a Member; or
(g) is an office-bearer, heading or rep
(1) The Board may associate with itself, in such manner and for such purposes as may be determined by the regulations, any person whose assistance or advice it may desire in carrying out any of the provisions of this Act.
(2) A person associated with the Board under sub-section (1) shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Board and shall not be a Member for any other purpose.
All orders and decisions of the Board shall be authenticated by the signature of the Chairperson and all other instruments issued by the Board shall be authenticated by the signature of the Member-Secretary of the Board.
Subject to other terms and conditions of service as may be prescribed, any person ceasing to be a Member shall be eligible for re-appointment as such Member:
Provided that no Member other than an ex officio Member shall be appointed for more than two consecutive terms.
The Board shall discharge the following functions, namely:--
(a) to advise the Central Government on policy matters relating to surrogacy;
(b) to review and monitor the implementation of the Act, and the rules and regulations made thereunder and recommend to the Central Government, changes therein;
(c) to lay down the code of conduct to be observed by persons working at surrogacy clinics;
(d) to set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics;
(e) to oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure their effective performance;
(f) to supervise the functioning of State Assisted Reproductive Technology and Surrogacy Boards; and
Each State and Union territory having Legislature shall constitute a Board to be known as the State Assisted Reproductive Technology and Surrogacy Board or the Union territory Assisted Reproductive Technology and Surrogacy Board, as the case may be, which shall discharge the following functions, namely:--
(i) to review the activities of the appropriate authorities functioning in the State or Union territory and recommend appropriate action against them;
(ii) to monitor the implementation of the provisions of the Act, and the rules and regulations made thereunder and make suitable recommendations relating thereto, to the Board;
(iii) to send such consolidated reports as may be prescribed, in respect of the various activities undertaken in the State under the Act, to the Board and the Central Government; and
(iv) such other functions as may be prescribe
Legal Comments
"Purpose of Act" - Regulatory framework to prohibit commercial surrogacy and regulate surrogacy to protect surrogate mothers and the child - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
"Section 4(iii)(c)(I) – Eligibility window" - Eligibility certificate for intending couple: married, female 23-50, male 26-55 on day of certification; prohibition of those beyond age, with exceptions for disabilities/life-threatening conditions under regulatory guidelines - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269], [RAJITHA P. V. W/O SANTHOSH M. VS UNION OF INDIA REP. BY ITS SECRETARY, NEW DELHI - 2025 0 Supreme(Ker) 123], [Rajitha P.V., W/o. Santhosh M. vs Union Of India, Represented By Its Secretary, Ministry Of Health And Family Welfare - 2025 0 Supreme(Ker) 2526]
"Non-retroactivity of age limits" - Age restrictions cannot be applied retrospectively to couples who initiated surrogacy before enforcement; vested reproductive rights under Article 21 preserved - [Renuga Anandkumar vs Union of India, rep. By its Secretary Ministry of Health & Family Welfare Department - 2025 Supreme(Online)(Mad) 70700], [Rajitha P.V., W/o. Santhosh M. vs Union Of India, Represented By Its Secretary, Ministry Of Health And Family Welfare - 2025 0 Supreme(Ker) 2526], [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793]
"Interpretation of 'to' in age range" - General Clauses Act interpretation that inclusive 'to' extends age window up to day before next birthday; used to extend eligibility to the 50th year for females - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269], [RAJITHA P. V. W/O SANTHOSH M. VS UNION OF INDIA REP. BY ITS SECRETARY, NEW DELHI - 2025 0 Supreme(Ker) 123]
"Altruistic vs commercial surrogacy definitions" - Act defines altruistic surrogacy (no monetary incentive) vs commercial surrogacy; surrogacy must be altruistic under statutory scheme - [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793], [01300050614]
"Surrogate mother eligibility" - Surrogate must be between 25-35 on implantation; no gamete provision by surrogate; surrogate won’t provide her own gametes; surrogate can only be used once; needs medical/psychological fitness - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269], [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793]
"Intending couple eligibility certification" - Certificate requires marriage and age within specified bands; exceptions for mentally/physically challenged child or life-threatening illness with medical Board certification - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269], [RAJITHA P. V. W/O SANTHOSH M. VS UNION OF INDIA REP. BY ITS SECRETARY, NEW DELHI - 2025 0 Supreme(Ker) 123]
"Rule validation and Form 2 amendments" - Rule 14 sets medical indications for gestational surrogacy; Form 2 amendments (2023) restrict donor gametes; court stayed amendments in certain cases, noting mismatch with Act’s purpose and Rule 14 - [V. Girija VS State of Tamil Nadu Rep. by its Principal Secretary to Government, Health & Family Welfare Department, Chennai - 2024 0 Supreme(Mad) 462], [XYZ VS Union of India through its Ministry of Health & Family Welfare, Department of Health Research - 2024 0 Supreme(Bom) 301], [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793]
"Judicial approach to age disputes" - Courts have held age limits must be strictly interpreted and cannot be liberally extended; yet some orders recognize purposive interpretation to preserve reproductive rights in specific facts - [Rajitha P.V., W/o. Santhosh M. vs Union Of India, Represented By Its Secretary, Ministry Of Health And Family Welfare - 2025 0 Supreme(Ker) 2526], [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
"Rights of surrogate child" - Child born through surrogacy deemed biological child of intending parents and entitled to natural rights; protections enshrined in Section 8 - [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793], [H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225]
"Guardianship and welfare considerations" - Courts have recognized best interests of the child as paramount in surrogacy-related guardianship and custody disputes; parens patriae considerations cited - [Master Eric Thind VS Union of India - 2023 0 Supreme(P&H) 2486], [Ena W/o Ashish Jain VS State of Gujarat - 2022 0 Supreme(Guj) 643]
"Maternity leave and surrogacy" - Some High Courts have interpreted statutory maternity leave to extend to commissioning mothers in surrogacy despite lack of express provision; e.g., Rajasthan case recognizing postnatal rights for commissioning mothers - [Chanda Keswani W/o Shri Bhupesh Datwani VS State of Rajasthan - 2023 0 Supreme(Raj) 1357]
"Medical indications and donor gametes" - Courts have addressed donor gametes where medical conditions prevent oocyte production; some petitions stayed amended rules to allow donor gametes where medically necessary, aligning with Rule 14 - [Arun Muthuvel VS Union Of India - 2023 0 Supreme(SC) 1816], [Arun Muthuvel VS Union Of India - 2023 0 Supreme(SC) 1817], [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
"Interplay with ART Act" - ART Act and Surrogacy Act operate in tandem; National Board and State Boards established to regulate implementation; Section 5-6 and Rule framework tie surrogacy to ART regulation - [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269], [Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327]
"Constitutional privacy and bodily autonomy" - Courts reference privacy and reproductive autonomy under Article 21 in evaluating surrogacy rights and the potential eroding impact of strict age limits - [Master Eric Thind VS Union of India - 2023 0 Supreme(P&H) 2486], [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
"Transitional provisions" - Act contains transitional provisions for existing surrogacy arrangements; some decisions have recognized continued eligibility for those already underway at enactment - [Master Eric Thind VS Union of India - 2023 0 Supreme(P&H) 2486], [RAJITHA P. V. W/O SANTHOSH M. VS UNION OF INDIA REP. BY ITS SECRETARY, NEW DELHI - 2025 0 Supreme(Ker) 123]
"Authority and governance" - Central and State Boards/Authorities empowered to issue eligibility/essentiality certificates; 90-day timelines for decisions; Form 1, Form 2, Form 17B referenced in regulatory framework - [H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225], [Subbulakshmi vs Union of India - 2025 Supreme(Online)(MAD) 12327], [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
"Prohibition of abandonment and child rights" - Act prohibits abandonment of surrogate-born children and guarantees rights of surrogate child to be treated as legitimate child with full parental rights in certain contexts - [Vijaya Kumari S. VS Union of India - 2025 0 Supreme(SC) 1793], [RAJITHA P. V. W/O SANTHOSH M. VS UNION OF INDIA REP. BY ITS SECRETARY, NEW DELHI - 2025 0 Supreme(Ker) 123]
"Public interest litigation context" - Courts have entertained PILs to challenge age limits, donor gamete restrictions, and guidelines, often staying or partially allowing petitions to balance reproductive rights with regulatory aims - [XYZ VS Union of India through its Ministry of Health & Family Welfare, Department of Health Research - 2024 0 Supreme(Bom) 301], [H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225]
"Citizenship and travel documents for surrogate-born children" - Courts have addressed citizenship and passport issues for children born via surrogacy; child welfare and parens patriae considerations prominent in guardianship/visa contexts - [JAN BALAZ VS ANAND MUNICIPALITY - 2009 0 Supreme(Guj) 609], [Master Eric Thind VS Union of India - 2023 0 Supreme(P&H) 2486]
"Penalties and enforcement" - Surrogacy Act establishes offences and penalties for violations (e.g., commercial surrogacy, exploitation, abandonment) with penalties defined in the statute; enforcement via appropriate authorities - (general reference to Act’s penalties in the act text)
"Key contested issues in Section 26/Regulatory framework" - While not detailed in every citation, Section 26 contemplates establishment and powers of State ART and Surrogacy Boards to monitor and regulate implementation; the regulatory architecture is essential to enforce eligibility criteria and protect stakeholders - [H. Siddaraju, S/o. Late Henjarappa VS Union of India, By its Secretary - 2023 0 Supreme(Kar) 225], [Rajitha P. V. W/o. Santhosh M. VS Union of India - 2025 0 Supreme(Ker) 269]
Note: The above points synthesize the content from the listed sources, focusing on Section 26 and surrounding regulatory provisions, emphasizing essential elements, scope, punishment framework, and evolving judicial interpretations. Where a source lacked explicit detail on a point, that point has been omitted.
The State Board shall consist of--
(a) the Minister in-charge of Health and Family Welfare in the State, Chairperson, ex officio;
(b) the Secretary in-charge of the Department of Health and Family Welfare, Vice-Chairperson, ex officio;
(c) Secretaries or Commissioners in-charge of the Departments of Women and Child Development, Social Welfare, Law and Justice and Home Affairs or their nominees, members, ex officio;
(d) Director-General of Health and Family Welfare of the State Government, member, ex officio;
(e) three women members of the State Legislative Assembly or Union territory Legislative Council, members, ex officio;
(f) ten expert members to be appointed by the State Government in such manner as may be prescribed, two each from amongst--
(i) eminent medical genet
(1) The term of office of a member, other than an ex officio member, shall be--
(a) in case of nomination under clause (e) of section 27, three years:
Provided that the term of such member shall come to an end as soon as the member becomes a Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the Legislative Assembly, or the Deputy Chairman of the Legislative Council or ceases to be a member of the House from which she was elected; and
(b) in case of appointment under clause (f) of section 27, three years:
Provided that the person to be appointed as member under this clause shall be of such age, as may be prescribed.
(2) Any vacancy occurring in the office whether by reason of his death, resignation or inability to discharge his functions owing to illness or other incapacity, shall be fi
(1) The State Board shall meet at such places and times and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be specified by the regulations:
Provided that the State Board shall meet at least once in four months.
(2) The Chairperson shall preside at the meetings of the Board and if for any reason the Chairman is unable to attend the meeting of the State Board, the Vice-Chairperson shall preside at the meetings of the State Board.
(3) All questions which come up before any meeting of the State Board shall be decided by a majority of the votes of the members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the Vice-Chairperson shall have a second or casting vote.
(4) The members, other than ex officio members, shal
No act or proceeding of the State Board shall be invalid merely by reason of--
(a) any vacancy in, or any defect in the constitution of, the State Board; or
(b) any defect in the appointment of a person acting as a member of the State Board; or
(c) any irregularity in the procedure of the State Board not affecting the merits of the case.
(1) A person shall be disqualified for being appointed and continued as a member if, he--
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, which in the opinion of the State Government, involves moral turpitude; or
(c) has become physically or mentally incapable of acting as a member; or
(d) has acquired such financial or other interest, as is likely to affect prejudicially his functions as a member; or
(e) has so abused his position, as to render his continuance in office prejudicial to the public interest; or
(f) is a practicing member or an office-bearer of any association representing surrogacy clinics, having financial or other interest likely to affect prejudicially, his functions as a member; or
(g) is an office-bearer, heading or repr
(1) The State Board may associate with itself, in such manner and for such purposes as may be determined by the regulations, any person whose assistance or advice it may desire in carrying out any of the provisions of this Act.
(2) A person associated with it by the State Board under sub-section (1) shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the State Board and shall not be a member for any other purpose.
All orders and decisions of the State Board shall be authenticated by the signature of the Chairperson and all other instruments issued by the State Board shall be authenticated by the signature of the Member-Secretary of the State Board.
Subject to the other terms and conditions of service as may be prescribed, any person ceasing to be a member shall be eligible for re-appointment as such member:
Provided that no member other than an ex officio member shall be appointed for more than two consecutive terms.
(1) The Central Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for each of the Union territories for the purposes of this Act and the Assisted Reproductive Technology Act.
(2) The State Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for the whole or any part of the State for the purposes of this Act and the Assisted Reproductive Technology Act.
(3) The appropriate authority, under sub-section (1) or sub-section (2), shall,--
(a) when appointed for the whole of the State or the Union territory, consist of--
(i) an officer of or above the rank of the Joint Secretary of the Health and Family Welfare Department--Chairperson, ex officio;
The appropriate authority shall discharge the following functions, namely:--
(a) to grant, suspend or cancel registration of a surrogacy clinic;
(b) to enforce the standards to be fulfilled by the surrogacy clinics;
(c) to investigate complaints of breach of the provisions of this Act, rules and regulations made thereunder and take legal action as per provision of this Act;
(d) to take appropriate legal action against the use of surrogacy by any person at any place other than prescribed, suo motu or brought to its notice, and also to initiate independent investigations in such matter;
(e) to supervise the implementation of the provisions of this Act and rules and regulations made thereunder;
(f) to recommend to the Board and State Boards about the modifications required in the rules and regulations
(1) The appropriate authority shall exercise the powers in respect of the following matters, namely:--
(a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act, and rules and regulations made thereunder;
(b) production of any document or material object relating to clause (a);
(c) search any place suspected to be violating the provisions of this Act, and the rules and regulations made thereunder; and
(d) such other powers as may be prescribed.
(2) The appropriate authority shall maintain the details of registration of surrogacy clinics, cancellation of registration, renewal of registration, grant of certificates to the intending couple and surrogate mothers or any other matter pertaining to grant of license, etc., of the surrogacy clinics in such format as may be
(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;
(b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated, any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;
(c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy;
(d) exploit or cause to be exploited
Section 38 of the Surrogacy (Regulation) Act, 2021, establishes the legal prohibition and penalties related to commercial surrogacy and associated exploitative practices. It aims to regulate surrogacy to prevent unethical conduct and protect surrogate mothers and children.
Section 38 explicitly prohibits:- Undertaking or advertising commercial surrogacy.- Engaging in sex selection of the child.- Abandoning or disowning a child born through surrogacy.- Exploiting surrogate mothers.
Violations are punishable with imprisonment up to 10 years and fines.
Note: The analysis is based on the provided sources, emphasizing the key legal provisions, scope, and penalties associated with Section 38 of the Surrogacy (Regulation) Act, 2021.
(1) Any registered medical practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act (other than the provisions referred to in section 38) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.
(2) In case of subsequent or continuation of the offence referred to in sub-section (1), the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration for a period of five years.
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.
The Surrogacy (Regulation) Act, 2021 was enacted to regulate surrogacy practices in India, primarily focusing on altruistic surrogacy while prohibiting commercial surrogacy. Section 40 specifically addresses the penalties for non-compliance with the altruistic surrogacy framework established by the Act.
Section 40 prescribes punishments for any intending couple, intending woman, or any person who seeks the aid of a surrogacy clinic that does not adhere to the altruistic surrogacy guidelines set forth in the Act.
The scope of Section 40 encompasses all parties involved in the surrogacy process, including clinics and individuals, ensuring that altruistic surrogacy is strictly followed and that commercial practices are not permitted.
The punishment for violating the provisions of altruistic surrogacy under Section 40 includes:- Imprisonment for a term that may extend to 5 years.- A fine that may extend to ₹10 lakhs for subsequent offences.
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.
Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of section 4 and such person shall be liable for abetment of such offence under section 40 and shall be punishable for the offence specified under that section.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.
(1) No court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by--
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person including a social organisation who has given notice of not less that fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said Code relating to plea bargaining shall not apply to the offences under this Act.
(1) The surrogacy clinic shall maintain all records, charts, forms, reports, consent letters, agreements and all the documents under this Act and they shall be preserved for a period of twenty-five years or such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any surrogacy clinic, the records and all other documents of such clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorised by the appropriate authority in this behalf.
(1) If the appropriate authority has reason to believe that an offence under this Act has been or is being committed at any surrogacy clinic or any other place, such authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officers considers necessary, such surrogacy clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to all action taken by the appropriate authority or any officer authorised by it under this Act.
No suit, prosecution or other legal proceeding shall lie against the Central Government or the State Government or the appropriate authority or any officer authorised by the Central Government or the State Government or by the appropriate authority for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.
The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
(1) The Central Government may, by notification and subject to the condition of pre-publication, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--
(a) the prescribed expenses under clauses (b), (f) and (q) of sub-section (1) of section 2;
(b) the minimum qualifications for persons employed at a registered surrogacy clinic under clause (iii) of section 3;
(c) the period and manner in which a person shall store human embryo or gamete under clause (vii) of section 3;
(d) the form and manner of application for obtaining certificate of recommendation from the Board under proviso to sub-clause (a) of clause (ii) of section 4;
(e) the insurance coverage in favour of the surrogate mother fr
The Board may, with the prior approval of the Central Government, by notification, make regulations not inconsistent with the provisions of this Act and the rules made thereunder to provide for--
(a) the fulfilment of any other condition under which eligibility certificate to be issued by the appropriate authority under sub-clause (d) of clause (v) of section 4;
(b) the time and place of the meetings of the Board and the procedure to be followed for the transaction of business at such meetings and the number of Members which shall form the quorum under sub-section (1) of section 19;
(c) the manner in which a person may be temporarily associated with the Board under sub-section (1) of section 22;
(d) the time and place of the meetings of the State Board and the procedure to be followed for the transaction of business at such meetings and the number of
Every rule made by the Central Government and every regulation made by the Board under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation or notification.
Subject to the provisions of this Act, there shall be provided a gestation period of ten months from the date of coming into force of this Act to existing surrogate mothers' to protect their well being.
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of the said Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
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