XVII. Surrogacy is defined by law as “a practice whereby one woman bears and gives birth to a child for an intending couple” and intends to hand over the child to them after the birth, as per the Surrogacy (Regulation) Act, 2021 (the “SRA”). The SRA restricts altruistic surrogacy to legally wedded infertile Indian couples. The couple is deemed eligible for surrogacy only if they have been married for five years. The SRA sets an age limitation for the couple. A husband must be between 26 and 55 years of age and a wife between 23 and 50 years. Further, Indian couples with biological or adopted children are prohibited from undertaking surrogacy, save for some exceptions such as mentally or physically challenged children, or those suffering from a life-threatening disorder or fatal illness. The SRA provides that the surrogate mother has to be a close relative of the couple (such as a sibling of one of the members of the couple), a married woman with a child of her own, aged between 25 and 35 years, who has been a surrogate only once in her life. Even within this category of people, commercial surrogacy is banned in India and that includes the “commercialisation of surrogacy services or procedures or its component services or component procedures”. The surrogate woman cannot be given payments, rewards, benefits or fees, “except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”.

A legal commentator points out some criticisms of the law. “Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality,” he writes. He adds that reproductive autonomy, inclusive of the right to procreation and parenthood is protected under Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. The intending parents typically sign a contract with the surrogate. The Indian Contract Act, 1872 (the “ICA”) provides that a valid contract has to be in writing, and signed in the presence of two witnesses. The ICA also provides that a contract that is prohibited by any other law will not be valid under the ICA.

Joseph and Neena are keen to have a child via surrogacy. They have been married for 8 years, and have been unable to conceive biologically due to infertility. Joseph is 40 years old and Neena is 42 years old. They have an adopted daughter, Maya, who is 4 years old. Maya has been diagnosed with Striker’s Syndrome, which would cause slow neurological deterioration, with chances of death. Devastated, Joseph and Neena decide to opt for surrogacy, to become parents to their biological child. Are they eligible for surrogacy?