By Rahul Khanna, Advocate
Introduction
Surrogacy, as a legal and ethical concept, touches the most intimate corners of human life—parenthood, bodily autonomy, and reproductive choice. In India, the surrogacy landscape has shifted dramatically over the last two decades. Once a global hub for commercial surrogacy, India enacted the Surrogacy (Regulation) Act, 2021 with the objective of prohibiting profit-oriented arrangements and ensuring that the practice is guided solely by altruism, legal clarity, and ethical safeguards.
This article provides an in-depth exposition of the legal framework governing surrogacy in India and examines the shocking Hyderabad baby-selling racket of 2025—an incident that exposed the vulnerabilities of the system and the continuing risks of black-market fertility operations despite a stringent regulatory regime.
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Understanding Surrogacy under Indian Law
The Surrogacy (Regulation) Act, 2021 defines “surrogacy” under Section 2(zc) as a practice where “a woman gives birth to a child for an intending couple and agrees to hand over the child to them after birth.” The law further restricts this definition to gestational surrogacy, wherein the surrogate mother is not genetically related to the child. Traditional surrogacy—where the surrogate contributes her own egg—is strictly prohibited.
At its core, the Act draws a stark line between altruistic and commercial surrogacy. Section 2(b) defines “altruistic surrogacy” as one in which the surrogate receives no monetary compensation or reward of any kind, except for medical expenses and insurance coverage. On the other hand, commercial surrogacy, defined under Section 2(f), refers to any surrogacy arrangement where the surrogate or her dependents receive financial incentives in cash or kind beyond permissible expenses. This includes advertising, brokerage, and the offering or acceptance of payment for acting as a surrogate.
By prohibiting commercial surrogacy and permitting only altruistic arrangements, the law seeks to eliminate the exploitative “rent-a-womb” industry that flourished in the absence of formal regulation.
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Eligibility Conditions: Intending Parents and Surrogate Mother
The Act imposes a rigorous eligibility framework for those seeking to enter a surrogacy arrangement.
An intending couple, under Section 2(g), must be a heterosexual Indian couple married for at least five years. The wife must be between 23 and 50 years of age and the husband between 26 and 55. Crucially, the couple must be medically certified as suffering from infertility, defined in the Assisted Reproductive Technology (Regulation) Act, 2021 as the inability to conceive after one year of unprotected intercourse. Furthermore, they must not have any surviving biological, adopted, or surrogate-born child, unless the existing child is mentally or physically challenged or suffers from a life-threatening disorder.
Single persons are largely excluded from the scope of the law. The only exception is a widowed or divorced woman between the ages of 35 and 45, who may opt for surrogacy as an “intending woman” under limited conditions. LGBTQ individuals, unmarried heterosexual couples, and live-in partners are not permitted to commission surrogacy in India under the current framework.
Similarly, a surrogate mother must meet stringent criteria under Section 4(iii)(b). She must be a close relative of the intending couple, be married and aged between 25 and 35 years, have borne at least one child of her own, and must not have acted as a surrogate previously. Additionally, she must possess a medical fitness certificate and give her informed written consent to the procedure. Notably, the law empowers her to withdraw that consent at any time prior to the implantation of the embryo.
A woman is allowed to be a surrogate only once in her lifetime, and the embryo implanted must be created using the gametes of the intending couple themselves. (Though this was partially relaxed by the 2024 Rules, as discussed later.)
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Regulatory Mechanisms and Procedural Safeguards
Before commencing a surrogacy procedure, intending parents must obtain a Certificate of Essentiality, which is granted upon satisfaction of three conditions:
1. A medical certificate of infertility from a District Medical Board;
2. An order from a Magistrate’s Court recognizing their parentage and custody of the child to be born; and
3. Proof of insurance coverage for the surrogate mother.
Additionally, a Certificate of Eligibility must be obtained by both the intending couple and the surrogate mother from the Appropriate Authority appointed under the Act. The surrogate mother’s certificate will confirm compliance with all criteria outlined above.
Every surrogacy procedure must be conducted in a registered surrogacy clinic, and the clinic must adhere to a code of conduct, record-keeping norms, and medical protocols laid down under the Act and its Rules. The National Surrogacy Board and respective State Boards are charged with overseeing and regulating the implementation of the law, ensuring uniform standards and ethical safeguards.
Violations of the Act—such as engaging in commercial surrogacy, abandonment of a surrogate child, using a surrogate who does not meet eligibility conditions, or running an unregistered clinic—are cognizable, non-bailable, and compoundable offences, punishable with imprisonment of up to 10 years and fines up to ₹10 lakhs.
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Legal Evolution: Key Amendments and Judicial Interventions
Initially, the 2021 Act and its 2022 Rules were interpreted to prohibit the use of donor gametes entirely, i.e., both egg and sperm had to originate from the intending couple. This led to practical difficulties in cases where one of the spouses was medically incapable of producing viable gametes.
In response, the Surrogacy (Regulation) Amendment Rules, 2024 permitted the use of one donor gamete, provided at least one gamete was from an intending parent. The amendment offered a lifeline to couples where one partner suffered from conditions such as premature ovarian failure or azoospermia, subject to certification by a District Medical Board.
Furthermore, in 2023, the Supreme Court of India granted relief to several women with conditions like MRKH syndrome, observing that a complete bar on donor gametes defeated the purpose of the Act. The Court emphasized the importance of balancing regulatory rigor with the fundamental right to reproductive autonomy under Article 21 of the Constitution.
A constitutional challenge is also pending before the Supreme Court on the ground that the exclusion of unmarried women and LGBTQ individuals from accessing surrogacy is arbitrary and violative of Article 14 (Right to Equality). As of mid-2025, no decision has been rendered, but judicial scrutiny is underway.
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The Hyderabad Scandal: A Case Study in Legal Evasion
Despite the existence of a comprehensive law, the Hyderabad fertility racket uncovered in July 2025 exposed the perils of weak enforcement and exploitative loopholes. The Universal Srushti Fertility Centre, run by Dr. Namratha Athaluri and her son, promised surrogate children to infertile couples at exorbitant rates, ranging from ₹20 to ₹35 lakhs.
In one case, a couple from Rajasthan was assured that the child would be genetically theirs, carried by a legally authorized surrogate. However, a DNA test revealed that the child was unrelated to either parent. The child had been purchased from an unrelated biological mother, who was reportedly paid ₹90,000 for surrendering her baby. Forged birth records falsely listed the commissioning couple as the biological parents.
Investigations revealed that Dr. Athaluri had continued to operate the clinic despite her medical license being cancelled in 2021. She ran parallel clinics, allegedly falsified IVF records, and recruited poor women from across the country to surrender babies born out of their own pregnancies, masquerading them as surrogate births.
The case involved violations of multiple laws, including:
• Surrogacy (Regulation) Act, 2021: Engaging in commercial surrogacy, using non-eligible surrogates, false documentation.
• Indian Penal Code: Cheating, forgery, criminal conspiracy, and human trafficking.
• Juvenile Justice Act, 2015: Illegal custody transfer and exploitation of children.
• PCPNDT Act: Seizure of unlicensed sex-determination equipment.
The accused were arrested, and the clinic was sealed. But the case underscores a disturbing reality: even the most well-intentioned legal frameworks can be subverted by profiteering actors when enforcement is lax and public awareness is poor.
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Critical Reflections and the Path Forward
The Hyderabad scandal calls for urgent introspection. India’s surrogacy law was born out of concern for dignity and protection—but the excessive narrowness of eligibility criteria and the absence of a practical surrogate pool may be incentivizing illegal alternatives. The requirement that the surrogate be a “close relative,” for instance, has proven to be virtually unworkable in many real-life scenarios.
Furthermore, the exclusion of large swaths of society—including single men, unmarried women, same-sex couples, and foreigners—while rooted in socio-cultural conservatism, may not withstand judicial scrutiny for long. The constitutional challenges pending before the Supreme Court may eventually force Parliament to adopt a more inclusive approach, guided by the principles of equality, non-discrimination, and privacy.
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Conclusion
India’s current legal regime on surrogacy, though well-intentioned, rests on a complex moral and constitutional balancing act. The Surrogacy (Regulation) Act, 2021 affirms the rights of children and surrogate mothers by banning commercial exploitation. Yet, the Hyderabad case illustrates that when the legal path becomes too narrow, the unlawful path gains traction.
A robust legal framework must be complemented by realistic policy, effective enforcement, and public awareness. Otherwise, as the Hyderabad scandal shows, vulnerable women may continue to be commodified, desperate couples misled, and innocent children denied their identity and legal parentage.
India must now look beyond prohibition and regulation—and build a humane, ethical, and inclusive surrogacy regime that safeguards dignity without denying the dream of parenthood.