On 25 January 2022, two statutes commenced on the same morning and between them redrew the legal map of how a child may be conceived in India with medical help. The Surrogacy Act 2021, formally the Surrogacy (Regulation) Act, 2021, Act 47 of 2021, abolished the commercial surrogacy market outright and replaced it with an altruistic model hedged by certificates, age bands and criminal penalties. Its companion, the Assisted Reproductive Technology (Regulation) Act, 2021, Act 42 of 2021, subjected every fertility clinic and gamete bank in the country to registration, national oversight and a detailed code of clinical duties. Read together, the two Acts took a field that had operated for two decades under professional guidelines, with no statute at all, and converted it into one of the most restrictive assisted reproduction regimes in the world, in a single step, with almost no transitional space between the old world and the new one.

The size of that step is the first thing to grasp, because nearly every dispute the two statutes have generated since commencement is a dispute about the step rather than about the destination. A couple who had frozen embryos in 2021 and crossed a statutory age line before their surrogacy could be arranged found that the ground had moved under a process they had lawfully begun. A woman born without a uterus, whose only route to a genetically related child ran through a donor egg, found that route closed not by Parliament but by the amendment of a paragraph in a form appended to the rules, and then partly reopened eleven months later by the amendment of the same paragraph. A divorced man who watched divorced women qualify as intending women under the surrogacy statute asked the Supreme Court why the same door was shut to him. Each of these contests is examined in this article on its verified record. The statutes themselves are stated from their enacted text: the eligibility certificates, the age bands, the offences, the registration machinery and the shared regulators are set out provision by provision, because the practical question almost every reader brings to this subject is a narrow one, namely whether a particular person, in a particular family situation, qualifies under one statute or the other or under neither.

That question has a sharper edge here than in most fields of Indian law, because the two statutes answer it differently for the same person. A never-married woman of twenty-five may walk into a registered clinic and receive assisted reproductive technology services in her own right, because the ART Act defines a woman, for its purposes, as any woman above the age of twenty-one years who approaches a clinic or bank for services. The same woman may not commission a surrogacy at all, because the Surrogacy Act admits only a legally married intending couple and an intending woman who is a widow or a divorcee between thirty-five and forty-five years. A widow of forty may commission a surrogacy, using her own eggs and donor sperm. Her divorced brother of forty may do neither under the surrogacy statute, because the intending woman definition has no male counterpart. The table at the centre of this article sets out, category by category, who qualifies under which Act and which provision decides the question. The rows where the two columns differ are the argument of the whole piece, because they show two statutes, passed by the same Parliament in the same month and commenced on the same day, working from two different conceptions of who may be helped to become a parent.

The series of which this article forms part has argued across many fields that the operative law in India very often sits not in the statute book but in delegated instruments, in rules, notifications, schedules and forms that Parliament never debates. The surrogacy story is the most personal application of that thesis in the entire file. The single most contested eligibility rule in this field, the rule deciding whether a donor gamete may be used, was imposed in March 2023 by substituting one sub-paragraph of Form 2 to the Surrogacy (Regulation) Rules, 2022, was litigated to the Supreme Court within the year, drew interim orders permitting individual petitioners to proceed, and was partly reversed in February 2024 by substituting the same sub-paragraph again. A family’s ability to have a child was determined, and then redetermined, by subordinate legislation. Everything else in this article, the market history, the drafting history, the certificates and the penalties, is the frame around that central fact. The two Acts sit inside a wider body of health legislation whose architecture is traced in the series guide to health laws in India, and they share its characteristic pattern: a framework statute of genuine ambition, administered through boards, registries and appropriate authorities, whose real content is completed elsewhere.

The market the statutes inherited

For roughly two decades before 2022, commercial surrogacy in India was lawful not because any legislature had approved it but because no legislature had prohibited it. The Indian Council of Medical Research issued its National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005, and those guidelines, supplemented by draft bills that were prepared in 2008, 2010, 2014 and 2017 and never enacted, were the whole of the regulatory apparatus. The guidelines contemplated accreditation and supervision of clinics and set conditions for surrogacy arrangements, but they were guidelines: they carried no statutory force, created no offences, and depended for compliance on the willingness of clinics to observe them. A market grew inside that permissive gap. Clinics in Anand in Gujarat and in the large metropolitan centres offered gestational surrogacy to Indian and foreign commissioning parents at prices far below those prevailing in the United States, and India became, by common description in the literature of the period, one of the principal destinations in the world for cross-border surrogacy. A widely cited estimate in the Asian Bioethics Review put the turnover of the industry at five hundred million dollars, and whatever the precision of that figure, the scale of the trade was not in doubt.

The absence of a statute meant that when arrangements failed, they failed into a legal vacuum, and the failures were conspicuous. In Baby Manji Yamada v. Union of India in 2008, a child born at Anand to an Indian surrogate for a Japanese couple was left in legal limbo when the couple divorced before the birth and the commissioning mother refused the child; the Supreme Court dealt with custody and travel questions on the footing that commercial surrogacy was not prohibited by any law then in force, and the case exposed how completely questions of parentage, citizenship and exit depended on improvisation. In Jan Balaz v. Anand Municipality in 2009, the Gujarat High Court considered twins born to an Indian surrogate for a German couple and treated the surrogate as the mother for the purpose of the children’s Indian citizenship by birth, a conclusion that solved the immediate problem while demonstrating that the law had no settled answer to the most basic question an arrangement could raise, namely whose child the child was. Other arrangements produced disputes over abandoned children, children born with disabilities whom commissioning parents declined to accept, and surrogates who alleged that payments promised to them had been withheld by intermediaries. Each incident strengthened the same conclusion, reached across the political spectrum, that a market of this sensitivity could not be left to guidelines.

The surrogate’s side of the market drew the closest scrutiny, and the evidence assembled by researchers was genuinely double-edged, a fact that matters when the cases for and against the eventual prohibition are stated later in this article. Ethnographic work, most prominently Amrita Pande’s study of surrogates at Anand published as Wombs in Labor, recorded women who described surrogacy in the language of work: a demanding undertaking, entered into for identifiable family goals such as a house, a debt discharged or a child’s schooling, and resented chiefly when clinics treated the women as vessels rather than as parties. The same body of work recorded the conditions under which that work was performed: hostel accommodation under clinic supervision, restricted movement, diets and conduct monitored by the commissioning clinic, and payment structures in which intermediaries and clinics took the larger share. Both halves of that record are true at once, and the legislative debate of the following decade can be understood as an argument about which half should govern the law’s response. The women’s health organisation Sama, the Resource Group for Women and Health in Delhi, pressed a third consideration that neither side of the payment debate fully answered: that infertility itself was being framed by clinics as a crisis demanding technological remedy, on timelines the industry had commercial reasons to shorten.

The state’s first response was administrative rather than legislative, and it came in the middle of the following decade. By a notification dated 4 November 2015, the Department of Health Research treated commercial surrogacy as impermissible, and notifications of the Ministry of Home Affairs and the Ministry of Commerce closed the door to foreign nationals and to overseas citizens of India commissioning surrogacy in India, while the import of human embryos was barred except for research purposes. From late 2015, therefore, the cross-border market that had made India a destination was shut by executive instruction, years before Parliament legislated. The domestic commercial market continued in the same legal twilight, governed by guidelines that could not be enforced as law, while successive bills attempted to settle the question and failed. That sequence, executive prohibition first and statute six years later, is the background against which the breadth of the 2021 prohibition should be measured: by the time the Surrogacy Act commenced, the foreign-facing market had already been closed for more than six years, and the Act’s work was to close the domestic market, define the narrow altruistic channel that would remain, and build the machinery to police the boundary.

Anand and the anatomy of a market

The town of Anand in Gujarat, known to the rest of India for the Amul dairy cooperative, became in the middle of the first decade of this century the most described surrogacy centre in the world, and its anatomy explains both the market’s appeal and its eventual fate. At the Akanksha Hospital, Dr Nayana Patel built a practice that organised every element of the arrangement under one roof: recruitment of surrogates from the surrounding districts, hostel accommodation in which the women lived under supervision through their pregnancies, medical care, and the management of commissioning parents who arrived from across India and from abroad. The economics were straightforward. Reporting from the bill debates recorded payments to surrogates in the region of four to five lakh rupees, with foreign couples paying more, at a time when that sum represented years of ordinary earnings for the women’s households and could be directed, as the women themselves described, to a house, to debts or to children’s schooling. One estimate cited in the scholarly literature put the number of babies born through transnational surrogacy in India at more than twelve thousand. For the commissioning parents the attraction was symmetrical: a regulated-by-guideline, English-speaking medical system offering a complete arrangement at a fraction of the cost in the United States, with success industrialised to the point that the hospital could speak of more than a thousand couples helped to have children through IVF and surrogacy.

The same anatomy contained the features that opponents of the market would later read back as its indictment. The hostel, which the clinic presented as care and monitoring, was experienced and described in the ethnographic record as a regime of supervision: diet controlled, movement restricted, contact with the commissioning parents managed by the clinic, and the women’s days organised around the pregnancy they were carrying for others. Amrita Pande’s account complicates any simple reading of that regime, because she records the hostel also functioning as a space the women made their own, sharing information and grievances and developing collective strategies, and the women she studied resisted the identity of victim that the abolition debate assigned them. The economic division of the arrangement attracted a parallel criticism: observers of the Anand model estimated that for every unit of money reaching the surrogate, several units were retained within the clinic and intermediary structure, so that the market’s surplus pooled at the top of the chain while its physical risks pooled at the bottom. And the market’s defenders and critics agreed on one fact that mattered most for the legislation to come: none of this structure rested on any statute. It rested on contracts of doubtful enforceability, on ICMR guidelines without sanctions, and on the continued goodwill of the executive, which is why a single season of notifications in late 2015 could end its international half without a vote, and why the clinics’ trade associations, when the end came for the domestic half in 2021, had no grandfathered rights to plead, only the transitional arguments that their patients later carried to the Supreme Court.

Fifteen years of drafting

The intellectual origin of the 2021 settlement lies in the Law Commission of India’s 228th Report, delivered in 2009, on the need for legislation to regulate assisted reproductive technology clinics and the rights and obligations of parties to a surrogacy. The Commission recommended that surrogacy be regulated by statute, that commercial surrogacy be prohibited, and that altruistic arrangements be recognised within a legal framework protecting the surrogate and the child. In the Commission’s often-quoted formulation, the need of the hour was a pragmatic approach that legalised altruistic surrogacy and prohibited commercial surrogacy. That single recommendation supplied the architecture of everything that followed: every subsequent bill, and the enacted Acts themselves, accepted the distinction between altruistic and commercial arrangements as the organising line, and argued instead about where the altruistic channel should begin and end, who should be admitted to it, and what a surrogate might lawfully receive. The debate that consumed the following decade was therefore not about the line’s existence but about its placement and its enforcement.

The Surrogacy (Regulation) Bill, 2016 was introduced in the Lok Sabha and examined by the Parliamentary Standing Committee, which reported in 2017; the Bill lapsed when the Sixteenth Lok Sabha was dissolved. The Bill of 2019 was passed by the Lok Sabha on 5 August 2019 and referred in the Rajya Sabha to a Select Committee of twenty-three members chaired by Bhupender Yadav, which reported in February 2020. The Select Committee’s work matters to the enacted text because several of its recommendations were accepted and visibly reshaped the Act, while its most radical recommendation was refused, and the contrast between the two sets is the clearest available evidence of the choices Parliament’s delegates actually made. To read the enacted Act accurately, its provisions have to be measured against the Bill that entered the committee rooms, since several conditions widely reported from the bill stage, including in reference works that were never updated, do not appear in the statute at all.

Why did the close relative requirement disappear from the surrogacy law?

The Bill as introduced required the surrogate to be a close relative of the couple, required five years of marriage, and insured the surrogate for sixteen months. The Select Committee recommended replacing the relative condition with any willing woman, and the Cabinet approved the change on 26 February 2020. The enacted Act follows the Committee: no relationship is required.

The recommendation the Committee made that was not accepted deserves separate notice, because it identifies the road the legislature considered and declined to take. The Select Committee proposed that the altruistic model itself be reconsidered in favour of a compensation model, under which the surrogate would receive compensation recognising her health costs and her lost wages, rather than medical expenses and insurance alone. The Cabinet’s approved revisions did not carry that proposal into the Bill, and the Act as enacted is altruistic in the strict sense defined in its second section: no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for her. A reader who wishes to understand the settlement should register that the compensation alternative was not overlooked. It was placed before the Government by a committee of Parliament, and the Government chose the stricter line.

The ART Bill travelled alongside the surrogacy legislation through the same parliamentary session, and the two were passed in December 2021, the ART Act receiving the President’s assent on 18 December 2021 and the Surrogacy Act on 25 December 2021. Suggestions that the two were assented on a single day are not borne out by the Gazette record; what they share is a commencement date, 25 January 2022, and a regulatory skeleton, since the ART Act adopts for its own purposes the very boards the Surrogacy Act creates. That shared skeleton was a deliberate economy: one National Board, one set of State Boards, one National Registry and one cadre of appropriate authorities administer both statutes, so that a clinic offering fertility treatment and a clinic offering surrogacy answer to the same supervisory structure. The economy came at a price in drafting precision, examined in the next section, but the institutional design itself is coherent, and it explains why the two Acts must be read as a pair even where their eligibility rules diverge.

The road through committee: what the drafting decade settled

Two features of the drafting decade explain provisions that puzzle readers of the enacted text, and both deserve fuller treatment than the chronology above allows. The first is the fate of the definition of infertility. The Bills of the period approached surrogacy through infertility: the 2016 and 2019 drafts framed the intending couple’s qualification around an inability to conceive, and the 2019 Bill carried a definition that measured infertility by five years of unprotected intercourse without conception. The Select Committee recommended deleting that definition and omitting the five-year wait, and the enacted Act abandoned the infertility frame almost entirely, substituting the medical indication test: what qualifies a couple is not a counted period of failure but a District Medical Board’s certificate that gestational surrogacy is medically necessitated. The change is substantive, not cosmetic. A durational definition would have conscripted couples into years of documented waiting and would have failed entirely the couple whose indication is anatomical and immediate, the woman born without a uterus being the clearest case. The enacted test asks the only question the procedure itself poses, whether gestation by the intending mother is medically unavailable to this couple, and it asks that question of a board rather than of a calendar.

The second feature is the treatment of the surrogate’s relationship to the family. The close relative condition in the Bills was defended, in the debates of the period, as a guarantee of altruism: a relative, it was said, acts from affection rather than commerce, and the family setting itself polices exploitation. The Select Committee’s substitution of any willing woman reversed the presumption, and the reasoning recorded against the relative condition is the reasoning the enacted Act embodies. A relative is the person least able to refuse. The obligation to help, laid on a younger woman inside a joint family by the combined weight of affection, hierarchy and dependence, is coercion in its most respectable dress, and it is invisible to every instrument the Act deploys, because no certificate records the pressure of a household. A stranger volunteer, by contrast, meets the appropriate authority as an independent party, gives consent in a transaction the authority can examine, and carries no continuing obligation to the family after the birth. The Committee also had before it the practical objection that many couples have no relative who is ever-married, has a child of her own, falls inside the age band and is willing, so the relative condition would have rationed lawful surrogacy to families of a particular shape. The willing woman of Section 4(iii)(b) is therefore not a relaxation smuggled into the Act; it is a considered answer to the question where altruism can be verified, and the Act answers that it can be verified only where refusal is possible.

The Standing Committee’s examination of the 2016 Bill and the Select Committee’s examination of the 2019 Bill also frame the one recommendation that failed, the compensation model, in its proper light. The proposal was not that the market be restored. It was that the surrogate receive, beyond medical expenses and insurance, a compensation assessed on her health costs and lost wages, so that the law would stop pretending that nine months of pregnancy, delivery and recovery cost the woman nothing but her medical bills. The Cabinet’s refusal, carried into the enacted definition of altruistic surrogacy, kept the Act’s line at the movement of money in any form beyond expenses and insurance: no charges, expenses, fees, remuneration or monetary incentive of whatever nature. The consequence for interpretation is that the prohibition cannot be evaded by labelling. A payment described as compensation, a gift routed through a relative, a job promised to the surrogate’s husband, each falls within the definition if it is a monetary incentive connected with the surrogacy, and Section 40’s offence of conducting surrogacy otherwise than altruistically is drafted to meet exactly those devices. Readers of the debates should therefore resist two opposite errors: the compensation model was seriously proposed and seriously refused, and the refusal was the decision that made the enacted regime what it is.

Two statutes, one architecture

The regulatory skeleton shared by the two Acts has four levels, and a reader who fixes them in mind can locate any provision of either statute. At the top stands the National Board, constituted under Section 17 of the Surrogacy Act, whose functions include advising the Central Government on policy, reviewing and monitoring the implementation of both Acts, laying down the code of conduct and the minimum standards for clinics, and supervising the National Registry. The ART Act, by Sections 3 and 4, adopts that same Board as the National Board for its own purposes and applies the Surrogacy Act’s Board provisions with the necessary adaptations, rather than constituting a second body; Sections 6 and 7 perform the same adoption for the State Boards, which the Surrogacy Act constitutes under Section 26. The third level is the National Registry of clinics and banks, established under Section 9 of the ART Act by notification of the Central Government within ninety days of commencement, and recognised by Section 15 of the Surrogacy Act as the central database of the field; Section 16 of the Surrogacy Act applies the ART Act’s Registry provisions to surrogacy clinics, completing the merger of the two registers into one. The fourth level is the appropriate authority, appointed under Section 12 of the ART Act and Section 35 of the Surrogacy Act by the Central Government for the Union territories and by each State Government for its State, which performs the operational work of the regime: granting, suspending and cancelling registrations, enforcing standards, investigating complaints and, under the Surrogacy Act, issuing the eligibility and essentiality certificates on which every lawful arrangement depends.

A drafting curiosity in this architecture deserves record, because it illustrates how quickly the two Bills were married. The ART Act’s own definitions describe the National Board by reference to a section of the Surrogacy Act and the State Board by reference to another, and the numerals given do not match the sections in which the enacted Surrogacy Act actually constitutes those Boards, which are Section 17 and Section 26 respectively. The ART Act’s cross-references appear to track an earlier draft numbering of the Surrogacy Bill, and they were never conformed when the Surrogacy Bill’s own numbering settled. No practical confusion results, because Sections 3 to 7 of the ART Act adopt the Boards functionally and completely, but the mismatch stands in the Gazette as a small monument to the speed of the December 2021 passage: two statutes designed as a pair, whose joining references were left pointing at the wrong doors.

Registration is the gate through which every provider must pass. Under Chapter IV of the Surrogacy Act, no surrogacy clinic may operate unless registered, and Chapter III performs the corresponding work for ART clinics and banks, with Section 15 of the ART Act forbidding any person to establish a clinic or bank for assisted reproductive technology unless it is duly registered under the Act. Clinics and banks already operating when the regime commenced were given sixty days from the establishment of the Registry to apply, and could not continue beyond six months from commencement unless they had applied. Registration under the ART Act is granted through the appropriate authority, is valid for five years, and may be renewed for five years at a time; it may be suspended or cancelled for contravention, with an appeal lying within thirty days to the State Government or the Central Government, as the case may be, and Section 20 arms the appropriate authority with powers of inspection. The Registry’s figures, as recorded in a survey of providers published in the Journal of Human Reproductive Sciences, showed 4,448 ART clinics, 1,179 ART banks and 854 surrogacy clinics as having filed for registration as on 15 May 2023, which conveys both the size of the sector the statutes inherited and the administrative scale of the registration exercise. The numbers are applications filed, not licences finally granted, and the distinction matters in a field where, as the same survey recorded, many clinics complained that certificates were slow to arrive.

How long does registration of an ART clinic or bank remain valid?

Registration under the ART Act is granted for five years and may be renewed for successive periods of five years, on application to the appropriate authority. The authority may suspend or cancel a registration for contravention after giving an opportunity of being heard, and an appeal lies to the State Government or the Central Government within thirty days.

Administering the regime: boards, authorities and clinics in practice

The architecture described above operates through a small number of recurring transactions, and the quality of the regime in any State depends on how those transactions are staffed. The National Board’s functions under the Surrogacy Act run from advising the Central Government on policy relating to surrogacy and assisted reproduction, through reviewing and monitoring the implementation of both Acts, to laying down the code of conduct, guidelines and minimum standards that clinics must observe and supervising the National Registry. The State Boards perform the corresponding supervisory work within their States. The appropriate authorities are the regime’s hands: under the Surrogacy Act they are appointed under Section 35, and their chapter charges them with granting and renewing the registration of surrogacy clinics, enforcing the standards prescribed, investigating complaints and breaches, and issuing the certificates of essentiality and eligibility on which arrangements depend. The ART Act’s appropriate authority, appointed under Section 12, holds the corresponding functions in Section 13 for clinics and banks, and Section 14 equips it with the powers needed to discharge them, including summoning information and entering premises. A couple’s file, a clinic’s registration and a donor’s record all pass, at some point, across the desk of an appropriate authority, which is why the office is best understood not as a post box but as the regime’s single point of accountability in each State and Union territory.

For clinics, the two Acts impose parallel but distinct registration disciplines, and a surrogacy clinic that also offers fertility treatment, the common case, must satisfy both. Chapter IV of the Surrogacy Act, Sections 11 to 16, provides for the registration of surrogacy clinics, the issue of the certificate of registration, and the place of the National Registry in the scheme, with Section 16 applying the ART Act’s Registry provisions so that one database carries both registers. No clinic may undertake surrogacy unless it is registered, and Section 3 forbids even a registered clinic from engaging in or promoting commercial surrogacy, employing intermediaries to arrange it, or conducting sex selection for it. The ART Act’s Chapter III, Sections 15 to 20, forbids the establishment of any clinic or bank without registration, prescribes the application route through the appropriate authority, fixes the five-year currency of registration and its renewal, provides for suspension and cancellation after an opportunity of being heard, gives an appeal to the State Government or the Central Government within thirty days, and empowers inspection of premises and records. The transitional burden of this scheme fell on a sector that had never been licensed at all: existing clinics and banks were required to apply within sixty days of the Registry’s establishment and could not lawfully continue beyond six months from commencement unless they had applied, so the first year of the regime was consumed by the conversion of a guideline-era sector into a registered one.

The provider survey recorded in the Journal of Human Reproductive Sciences gives the registration exercise a texture that the Gazette cannot. Of the clinics responding, large majorities reported that no inspection visit had taken place and that registration certificates had not been received long after application, and two-thirds of those answering the fee question considered the registration fees too high, with smaller clinics and nursing homes reporting them unaffordable. Those findings are the findings of a survey of interested parties and are recorded as such; what they establish without controversy is that the distance between the statute book and the clinic corridor, which runs through State appropriate authorities of varying capacity, is the regime’s standing administrative problem. A law that answers exploitation with licensing must fund and staff the licensor, and the history of Indian health regulation, in which elaborate central frameworks wait upon State machinery, supplies the obvious caution. The same survey’s figures for applications filed, 4,448 ART clinics, 1,179 ART banks and 854 surrogacy clinics as on 15 May 2023, should be read with that caution in mind: they measure the sector’s response to the registration call, not the number of institutions finally certified to operate.

The Registry deserves a final word of its own, because its function is larger than its name suggests. The National Assisted Reproductive Technology and Surrogacy Registry is constituted as the central database of the field, carrying the particulars of every registered clinic and bank, the nature and types of services provided and the outcomes of those services, reported on a continuing basis; the data it generates are to be used by the National Board for making policies and guidelines and for identifying research areas in assisted reproduction and surrogacy. The register of registered institutions is placed in the public domain through the Registry’s portal, so that a patient can test a clinic’s claim to registration against the state’s own record, a small but real transfer of power in a market whose guideline-era failing was that no patient could verify anything. The design completes the architecture’s logic: boards that set standards, authorities that license and certify, and a registry that remembers. Where the design is thinnest is at its base, since every level above the appropriate authority depends on information the authority gathers, and the variance in State capacity that the provider survey hints at propagates upward through the whole structure. A registry is only as truthful as its inspectors, and the Acts, for all their care with definitions and certificates, cannot appropriate the money or appoint the officers on which their own information system depends.

The Surrogacy Act 2021: an altruistic model and nothing else

The Surrogacy Act is built around a single prohibition and a single narrow permission. The prohibition is stated in Section 3, which bars surrogacy clinics from undertaking or promoting commercial surrogacy in any form, and it is powered by the definition in Section 2(1)(g), under which commercial surrogacy embraces every arrangement in which a benefit beyond medical expenses and insurance passes to the surrogate or her dependants. The permission is the definition of altruistic surrogacy in Section 2(1)(b): a 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 the surrogate mother and the insurance coverage for her, are given to the surrogate mother or her dependants or her representatives. The two definitions between them draw the Act’s organising line at the movement of money. A pregnancy carried for love, duty or family solidarity, with its medical costs met and its risks insured, is lawful within the Act’s conditions. The same pregnancy carried for a fee is a criminal offence, whoever pays the fee and whatever the surrogate herself may think of the bargain. The closest structural parallel in Indian law is the prohibition on payment for a bodily contribution under the Transplantation of Human Organs Act, where Parliament likewise decided that a human bodily service could be given but never sold, and built an authorisation machinery to police the distinction between gift and sale.

Section 4 then states the purposes for which surrogacy may be undertaken at all, and its list is exhaustive in tone. Surrogacy is permissible where the intending couple has a medical indication necessitating gestational surrogacy; where it is for altruistic purposes only; where it is not for commercial purposes or for commercialisation in any form; where it is not for producing children for sale, prostitution or any other form of exploitation; and where any other condition or disease specified by regulations of the Board applies. Two features of that list repay attention. First, the trigger is medical: the Act does not recognise surrogacy as a lifestyle choice, a convenience or a preference, but only as a response to a medical indication that necessitates the gestational form of the procedure, in which the embryo is implanted in the surrogate and the surrogate contributes no genetic material of her own. Second, the list is addressed to purposes, not merely to persons, so that an arrangement between otherwise eligible parties still fails if any of the stated purposes is absent. The definition of the surrogate mother in Section 2(1)(zg) completes the design: she is a woman who agrees to bear a child genetically related to the intending couple or the intending woman, through surrogacy from the implantation of the embryo in her womb. Traditional surrogacy, in which the surrogate’s own egg is used, is outside the statutory scheme altogether, a point reinforced by the eligibility conditions, which require that she shall not provide her own gametes.

Section 4 and the certificates: how eligibility is proved

Because the Act admits so few people, it proves their admission three times over. Section 4(iii) requires the intending couple or the intending woman to obtain, before any procedure begins, a certificate of essentiality and a certificate of eligibility from the appropriate authority, together with the eligibility certificate of the surrogate mother. The certificate of essentiality, under Section 4(iii)(a), is issued when three conditions are satisfied. The first is a certificate of medical indication necessitating gestational surrogacy, issued by the District Medical Board, a body chaired by the Chief Medical Officer or the corresponding senior health officer of the district and including at least the chief gynaecologist or obstetrician and the chief paediatrician. The second is an order concerning the parentage and custody of the child to be born, passed by a Magistrate of the first class or above on an application by the intending couple or woman and the surrogate mother; the Act directs that this order shall be treated as the birth affidavit after the child is born, so that the question Jan Balaz had to improvise is answered before the pregnancy begins. The third is insurance coverage for the surrogate mother for a period of thirty-six months, covering complications arising during the postpartum delivery period, obtained from an insurance company or agent recognised by the Insurance Regulatory and Development Authority. One further document belongs in this family: where the applicants are a couple of Indian origin, or an intending woman, the proviso to Section 4(ii)(a) requires a certificate of recommendation from the National Board, a distinct route that reflects the legislature’s wariness of arrangements with a cross-border element even after foreign commissioning was closed.

The certificate of eligibility for the intending couple, under Section 4(iii)(c), states the couple conditions. The couple must be married, and on the day of certification the woman must be between twenty-three and fifty years of age and the man between twenty-six and fifty-five years. The couple must have no surviving child, whether biologically, through adoption or through surrogacy. That bar carries an exception of deliberate humanity: it does not apply where the couple’s existing child is mentally or physically challenged, or suffers from a life-threatening disorder or fatal illness with no permanent cure, and the exception must be certified by the District Medical Board and approved by the appropriate authority. Beyond these stated conditions, the section reserves a tailpiece, such other conditions as may be specified by regulations, through which the Board may add requirements without further recourse to Parliament. The intending woman’s route is narrower and is defined at the threshold: Section 2(1)(s) confines it to an Indian woman who is a widow or a divorcee between the ages of thirty-five and forty-five years and who intends to avail of surrogacy, and the Rules require her to use her own eggs with donor sperm, a condition whose history is told in the section on Form 2 below. No five-year duration of marriage is demanded of the couple anywhere in the enacted text, and no condition requires the surrogate to be a relative; both requirements belonged to the Bills and died in committee, as the drafting history above records.

The surrogate mother’s own eligibility certificate, under Section 4(iii)(b), states her conditions, and they are the Act’s principal protection for the woman who carries the pregnancy. She must be an ever-married woman having a child of her own, between twenty-five and thirty-five years of age on the day of implantation. She must be a willing woman, in the Select Committee’s substituted phrase, who comes forward with the intending couple or woman to the appropriate authority; no relationship to the family is required, and none is presumed. She must not provide her own gametes for the arrangement. She may act as a surrogate only once in her lifetime, although the number of attempts that may be made on her behalf is left to be prescribed, and the Rules cap the attempts at three. She must hold a certificate of medical and psychological fitness for surrogacy from a registered medical practitioner. Each condition answers a documented abuse of the market era: the requirement of a child of her own answers the case of the first-time mother recruited for her fertility; the once-in-a-lifetime cap answers the professional surrogate who carried pregnancy after pregnancy at Anand; the age band answers recruitment at the extremes; and the fitness certificate interposes a medical judgment between the recruiter and the woman.

What is gestational surrogacy, and why does the Act insist on it?

Gestational surrogacy is the arrangement in which an embryo created outside the body is implanted in the surrogate’s womb, so the child is genetically related to the intending couple or woman and not to her. The Act insists on this form: its definition of a surrogate mother requires that genetic relation, and she is forbidden to provide her own gametes.

The intending woman’s route, examined closely

The intending woman is the Surrogacy Act’s only concession to single parenthood, and her narrowness is the measure of the concession. Section 2(1)(s) admits an Indian woman who is a widow or a divorcee, between thirty-five and forty-five years, and who intends to avail of surrogacy. Three features of the definition deserve emphasis because each excludes a class that searchers persistently believe is included. The first is that the qualifying events are widowhood and divorce, legal terminations of a marriage that existed; a woman whose marriage was annulled, a woman separated but not divorced, and a woman who never married are all outside the words, whatever the equities of their positions, and the never-married woman’s pending petition in the Delhi High Court is directed at exactly this boundary. The second is the age band, thirty-five to forty-five, which is a decade narrower than the female band for an intending couple and sits higher: the legislature evidently contemplated a woman of settled maturity making a final decision, and the band excludes the widow of thirty and the divorcee of forty-eight alike, each of whom may still receive ART services in her own body under the other statute until fifty. The third feature is genetic: the Rules require the intending woman to use her own eggs with donor sperm, a requirement that the February 2024 amendment to Form 2 left untouched while it liberalised the couple’s position, so that a widow whose own oocytes cannot be used has no route at all, certified medical necessity notwithstanding. The asymmetry between the couple limb and the single woman limb of the substituted paragraph 1(d) is the least discussed feature of the 2024 settlement, and for the women it governs it is the whole settlement.

The route also illuminates the Act’s theory of its own exceptions. A widow or divorcee, in the legislature’s apparent reasoning, has had the marital history the Act treats as the normal gateway to parenthood, and her claim is framed as the completion of a family project that death or divorce interrupted rather than the start of one outside marriage. That reasoning explains the boundary; it does not answer the petitions against it, which ask why the State’s interest in the child’s welfare, or in the surrogate’s protection, is engaged differently by a woman who never married. The petitions are pending, the reasoning of the defence will be tested in them, and the outcome will decide whether the intending woman remains a widow-and-divorcee category or becomes the entering wedge of a wider single-parent eligibility. Until then, the practitioner’s statement of the law is the definition as enacted, and it is stated in the table above without softening.

The surrogate and the child

The Act’s treatment of the pregnancy itself is compressed into Sections 6 to 10, and it is written from the premise that the two failures of the market era most in need of statutory answers were the coerced surrogate and the abandoned child. Section 6 requires the written informed consent of the surrogate mother, obtained in a language she understands, after she has been told of the known side effects and after-effects of the procedure, before any step is taken. Section 42 adds a presumption with real forensic weight: where an offence under the Act is alleged, the court shall presume that the woman was compelled to undertake surrogacy by her husband, the intending couple or a relative, unless the contrary is proved. The presumption inverts the ordinary burden in recognition of the setting in which consent is usually obtained, inside a family or a clinic office, where a paper signature proves little about freedom. Section 7 forbids the intending couple or woman to abandon the child born through surrogacy for any reason whatsoever, and the illustrations given in argument during the drafting, a child born with a disability, a child of an unexpected sex, twins where one was commissioned, are answered by Section 8: the child born through surrogacy is deemed to be the biological child of the intending couple or the intending woman, and is entitled to all the rights and privileges available to a natural child under any law in force. The deemed-biological-child rule, repeated in the ART Act for children of assisted reproduction generally, closes the question that the pre-statute courts had to answer case by case, and it does so at the point of maximum clarity, by deeming rather than by inference.

Section 9 leaves the number of oocytes or embryos that may be implanted in the surrogate to be prescribed, and the Rules ordinarily provide for a single embryo in a treatment cycle, with up to three permitted in special circumstances, a clinical judgment that the statute wisely refuses to freeze. Section 10 governs termination: no person may cause an abortion of the child in the surrogate’s womb except with the written consent of the surrogate mother and an authorisation from the appropriate authority, and any termination must be in accordance with the Medical Termination of Pregnancy Act, 1971. The provision is the surrogate’s veto written into the statute, and it marks an important limit on the intending couple’s contractual expectations: the pregnancy remains, in law, the surrogate’s, and the couple’s parentage order does not purchase control over her body during it. The interaction of the two statutes with the wider law of reproductive decisions, including the amendments to the medical termination framework and the sex determination legislation that shadows every ultrasound in this field, is a recurring theme of the litigation described below, because the same constitutional vocabulary of choice and autonomy runs through all of it.

One practical incident of parenthood deserves record in this section, because intending mothers ask about it early and the answer sits in a different statute. The Maternity Benefit (Amendment) Act, 2017 recognises the commissioning mother expressly: under Section 5(4) of the Maternity Benefit Act, a woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to maternity benefit for twelve weeks from the date the child is handed over to her, and the maternity benefit framework explains the entitlement’s conditions and its place in the amended scheme. A commissioning mother under the Surrogacy Act is thus not dependent on her employer’s grace for leave at the child’s arrival; the entitlement is statutory, although at twelve weeks it is markedly shorter than the twenty-six weeks available to a woman who gives birth herself, an asymmetry that critics of the settlement cite and defenders describe as the honest consequence of a pregnancy carried by another.

The surrogate’s position under the new regime

It is worth assembling, in one place, everything the enacted scheme does for and to the woman who carries the pregnancy, because the provisions are scattered across the Act and their combined effect is the real answer to the exploitation debate. In her favour, the scheme gives her a fitness gate, so that a registered medical practitioner must certify her medical and psychological fitness before she is eligible at all. It gives her information: consent under Section 6 must be preceded by an account of the known side effects and after-effects of the procedure, and must be taken in a language she understands. It gives her an income-independent protection, the thirty-six months of insurance covering postpartum complications, which exists whether the intending couple remains willing or solvent. It gives her the abortion veto of Section 10. It gives her the presumption of Section 42, so that if the arrangement is ever investigated as an offence, the court starts from the position that she was compelled, and those who dealt with her must disprove it. It gives her, through Section 44, a complaint channel that a social organisation may open on fifteen days’ notice to the appropriate authority, so that she is not dependent on her own resources to set the criminal law in motion. And it caps her exposure to the practice itself: once in her lifetime, within the ages of twenty-five and thirty-five, with a child of her own already born.

Against that ledger stand the scheme’s demands and silences. The same once-in-a-lifetime rule that protects her from serial recruitment also extinguishes, after a single arrangement, an option she might have wished to repeat. The altruistic definition denies her any payment for the pregnancy itself, so that the considerable labour, risk and dislocation of nine months are compensated only in expenses, and the insurance that headlines the scheme’s generosity is, on inspection, a protection against the arrangement’s dangers rather than a reward for undergoing them. The Act prescribes no counselling independent of the clinic as a statutory entitlement in the enacted text, no representation of her interests in the certificate proceedings separate from the joint application, and no mechanism by which her consent is revisited as the pregnancy proceeds; consent is an event at the threshold, not a continuing relationship the statute supervises. Whether the balance of that ledger is protection or paternalism is the question on which Sama and the Act’s defenders divide, and it is recorded here as the statute strikes it, so that the reader can see that the disagreement is not about what the Act says but about what the Act’s combination of generosity and denial adds up to for the woman at its centre.

The child’s paper trail: parentage, birth and status

A surrogacy arrangement produces a child whose legal identity must be settled at three moments, at the order before the birth, at the registration of the birth, and in the child’s continuing status, and the Act addresses each moment with a device worth distinguishing. The first device is the Magistrate’s order on parentage and custody, obtained as part of the certificate of essentiality before any procedure begins. Because the order precedes the pregnancy, the question that destroyed arrangements in the market era, who may take this child, is answered at the only time when all parties are before an authority and no child exists to be fought over. The Act then directs that the order be treated as the birth affidavit after the child is born, which is the second device: the documentary foundation of the birth record is the judicial order itself, rather than a hospital entry naming the woman who delivered. The surrogate’s name is thereby kept out of the position of legal mother on the face of the record, and the intending parents are placed on it, without a second proceeding. The third device is the deeming provision of Section 8, which settles status for all purposes and not merely for registration: the child is deemed the biological child of the intending couple or the intending woman, entitled to all the rights and privileges of a natural child under any law in force, which carries the consequences for succession, maintenance and identity that parentage ordinarily carries. The ART Act’s Section 31 performs the same deeming for children of assisted reproduction generally and adds its necessary corollary, that the donor relinquishes all parental rights, so that no third claim can surface from the gamete side of the arrangement.

The protective provisions around the child are drafted against the market era’s worst cases and should be read with those cases in mind. Section 7 forbids abandonment of the child by the intending couple or woman for any reason whatsoever, and Section 38 makes abandoning, disowning or exploiting the child an offence punishable with imprisonment up to ten years and a fine up to ten lakh rupees. The disability case, in which commissioning parents of the guideline era declined a child born with a condition they had not bargained for, is met at both levels: the parentage order and the deeming provision fix the child as theirs before birth, and the offence provisions make the refusal a crime rather than a breach of contract to be settled by refund. The sex case is met by the prohibition on sex selection for surrogacy, carried in Section 38 and reinforced by the ART Act’s Section 26 and the sex determination legislation. What the Act does not do is equally instructive. It creates no special citizenship rule, because it does not need one: a child deemed the biological child of Indian intending parents, born in India, takes the ordinary incidents of that status, and the cross-border tangles of Baby Manji and Jan Balaz arose precisely from the foreign element that the administrative closure of 2015 and the Act’s Indian definitions have since removed from the scheme. The child’s position, uniquely in this statute, is the one position the legislature made simple.

The ART Act: a wider gate and a stricter clinic

The ART Act regulates the technology rather than the family, and the difference in its subject explains the difference in its gate. Its definition of assisted reproductive technology in Section 2(1)(a) reaches all techniques that attempt to obtain a pregnancy by handling sperm or oocyte outside the human body and transferring the gamete or embryo into the reproductive system of a woman. The Act’s central service definitions are drawn widely. A commissioning couple, under Section 2(1)(e), is an infertile married couple who approach an ART clinic or bank for the purpose of using the technology to obtain a pregnancy; infertility itself, in Section 2(1)(j), is the inability to conceive after one year of unprotected coitus or another proven medical condition preventing conception. And a woman, under Section 2(1)(u), is any woman above the age of twenty-one years who approaches an ART clinic or bank to obtain the services the Act regulates. That single definition is the textual root of the inconsistency around which so much of the litigation turns. Where the Surrogacy Act admits a woman to parenthood only through marriage, widowhood or divorce, the ART Act admits her as a woman. A never-married woman may therefore receive treatment at a registered clinic, including treatment with donor sperm, while remaining wholly outside the surrogacy statute; the two Acts, commenced on the same day, measure her by different instruments. No corresponding route exists for a single man under either statute, since ART services are defined by transfer into a woman’s reproductive system and the surrogacy route requires either a married couple or an intending woman.

The Act’s duties chapters, Sections 21 to 31, convert that open gate into a disciplined clinical regime. Section 21 states the general duties of clinics and banks, among them the age discipline in clause (g): clinics shall provide services only to a woman above twenty-one and below fifty years of age and to a man above twenty-one and below fifty-five years. The clause is framed on individuals rather than on couples, a reading later confirmed in High Court proceedings on the ART age limits, and it differs from the Surrogacy Act’s couple bands in both directions, since a woman of twenty-two may receive ART services years before she could qualify as the female half of an intending couple, while the male ceiling is the same fifty-five. Section 22 requires the written informed consent of all parties, requires insurance coverage for a period of twelve months in favour of the oocyte donor, paid for by the commissioning couple or woman, and forbids the cryopreservation of gametes or embryos without specific written consent. Section 23 requires records to be maintained for at least ten years and thereafter transferred to the National Registry, so that the documentary trail of a child’s conception outlives the clinic’s own filing system. Section 24 disciplines the treatment cycle itself: not more than three oocytes or embryos may be placed in a woman’s uterus in one cycle; no clinic may offer treatment with gametes or embryos derived from more than one man or one woman during a single cycle; semen shall not be mixed; and no embryo may be split for the purpose of twinning.

The donation provisions of Section 27 are the ART Act’s counterpart to the Surrogacy Act’s eligibility certificates, and they are equally exact. Gametes may be sourced only through registered banks. A bank may collect sperm from a donor between twenty-one and fifty-five years and oocytes from a donor between twenty-three and thirty-five years, and donors must be examined for prescribed diseases. A bank shall not supply the sperm or oocyte of a single donor to more than one commissioning couple or woman, a rule whose purpose is to shrink the risk of inadvertent consanguinity in the next generation. An oocyte donor may donate only once in her lifetime, and not more than seven oocytes shall be retrieved from her, limits that convert egg donation from a repeatable income of the unregulated era into a single, bounded act. The bank records the donor’s identity, including the Aadhaar number, under the Act’s confidentiality discipline, so that anonymity is owed to the world but traceability is preserved for the Registry. Section 25 confines pre-implantation genetic testing to screening for known, pre-existing, heritable or genetic diseases; Section 26 prohibits sex selection and ties the prohibition to the regime of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994; Section 28 limits the storage of gametes and embryos to ten years, after which they must be allowed to perish or be donated to a registered research organisation with the consent of the parties; and Sections 29 and 30 prohibit the sale, transfer or use of gametes, zygotes and embryos to any party within or outside India, save the transfer of a person’s own gametes or embryos for personal use with the permission of the National Board, and prohibit without exception the transfer of gametes or embryos for research purposes outside India. Section 31 completes the scheme from the child’s side: a child born through assisted reproductive technology is deemed the biological child of the commissioning couple or woman, with all the rights of a natural child, and the donor relinquishes all parental rights over the child. The donor thus exits the legal family entirely, a clean break that the surrogacy chapters achieve by the parentage order and the ART chapters by deeming.

Can a surrogate mother refuse or end the pregnancy?

The statute reserves the decisive choices to the surrogate herself. Her consent under Section 6 must be written, informed and given in a language she understands, and Section 10 permits no abortion of the child in her womb except with her written consent and the authorisation of the appropriate authority, in accordance with the Medical Termination of Pregnancy Act, 1971.

The ART bank and the ethics of supply

If the Surrogacy Act’s characteristic institution is the certificate, the ART Act’s is the bank, and the bank provisions repay a closer reading than they usually receive, because they govern the supply side of conception for every patient in the system, married or single, fertile with assistance or dependent on donation. A bank under the Act is the registered intermediary that screens, collects, stores and supplies gametes, and Section 27 builds its discipline around three anxieties. The first anxiety is health: donors must be examined for the diseases prescribed, and the age bands for donation, sperm donors between twenty-one and fifty-five years and oocyte donors between twenty-three and thirty-five years, track the ages at which gamete quality and donor safety are medically best supported. The second anxiety is kinship: the rule that a bank shall not supply the sperm or oocyte of a single donor to more than one commissioning couple or woman means that donor-conceived children in one generation cannot unknowingly be half-siblings scattered across many families by one prolific donor, a harm that unregulated markets abroad produced at scale and that a single register is uniquely placed to prevent. The third anxiety is the donor’s own body: the oocyte donor’s once-in-a-lifetime limit and the ceiling of seven oocytes retrieved from her answer the practice, documented in the guideline era, of repeated ovarian stimulation of poor women as a source of income, and the twelve months of insurance that Section 22 requires the commissioning couple or woman to buy for her prices the risk of the procedure into the transaction that creates it.

The storage and movement provisions complete the bank’s legal world. Section 28’s ten-year ceiling on the storage of gametes and embryos, after which they must perish or pass to a registered research organisation with consent, prevents the indefinite warehousing of reproductive material whose owners have died, disappeared or lost interest, and forces a decision while the parties can still be asked. The record provisions of Section 23, requiring maintenance for at least ten years and transfer thereafter to the National Registry, mean that the documentary chain from donor to child is never wholly in private hands. Sections 29 and 30 then seal the borders of the system: no sale, transfer or use of gametes, zygotes or embryos to any party within or outside India, save a person’s own material transferred for personal use with the National Board’s permission, and no transfer of human embryos or gametes outside India for research at all. Read together, the provisions describe a closed national circuit of reproductive material, registered at entry, traceable in storage, extinguished or archived at the decade mark, and barred from export. The contrast with the guideline era, in which embryos were imported and exported as freight and the Home Affairs and Commerce notifications of the middle of the following decade had to bar embryo import by executive instruction, measures how completely the 2021 settlement intended to bring the material of conception inside the state’s field of vision.

Who qualifies under which Act

The table below is the article’s findable artifact, and it is intended to be read row by row, because each row states a legal position that follows from the provisions analysed above. The first row is the only uncomplicated one. A married Indian couple with a medical indication necessitating gestational surrogacy may commission surrogacy through the certificate machinery of Section 4, and may access assisted reproduction as a commissioning couple under the ART Act; their case is the one both statutes were designed around, and even their passage is gated by age bands, the no-surviving-child condition and the District Medical Board’s certificate. Every other row is a study in asymmetry. The widow and the divorcee within the statutory ages qualify as intending women for surrogacy and as women for ART, the two statutes converging on them for once. The never-married woman is the hinge of the whole comparison: wholly outside the surrogacy statute, wholly inside the ART statute, separated from a surrogacy by nothing but her marital history. The single man is outside both, under the surrogacy statute because no intending-man category exists, and under the ART statute because ART services are defined around transfer into a woman’s body and the single woman’s route has no male equivalent. Couples in live-in relationships fail the marriage condition that both statutes attach to their couple categories, although the woman partner may receive ART services in her individual capacity; and same-sex couples are outside both statutes’ couple definitions, which are written throughout in the language of a man and a woman.

Category of person	May commission surrogacy	May access assisted reproductive technology	Deciding provision
Married couple	Yes, altruistic only, with certificates of essentiality and eligibility and a medical indication	Yes, as a commissioning couple	Surrogacy Act, Sections 2(1)(h), 2(1)(r) and 4; ART Act, Section 2(1)(e)
Widow	Yes, if between 35 and 45 years, using her own eggs and donor sperm	Yes, as a woman above 21 years	Surrogacy Act, Sections 2(1)(s) and 4; ART Act, Sections 2(1)(u) and 21(g)
Divorcee	Yes, if between 35 and 45 years, using her own eggs and donor sperm	Yes, as a woman above 21 years	Surrogacy Act, Sections 2(1)(s) and 4; ART Act, Sections 2(1)(u) and 21(g)
Never-married woman	No	Yes, as a woman above 21 years	Surrogacy Act, Section 2(1)(s) by omission; ART Act, Sections 2(1)(u) and 21(g)
Single man	No	No route as a single person	Surrogacy Act, Sections 2(1)(s) and 2(1)(h) by omission; ART Act, Section 2(1)(u) by omission
Couple in a live-in relationship	No, not being legally married	The woman may access services in her own right; the couple as such is not a commissioning couple	Surrogacy Act, Section 2(1)(h); ART Act, Sections 2(1)(e) and 2(1)(u)
Same-sex couple	No	No, as a couple; the couple definitions require a man and a woman	Surrogacy Act, Section 2(1)(h); ART Act, Section 2(1)(e)

The table’s lesson is that eligibility in this field is not a single ladder but two gates of different widths, built by the same legislature for adjacent purposes. The surrogacy gate is narrow because the legislature regarded gestation by another woman as the exceptional act requiring justification; the ART gate is wider because the legislature regarded laboratory assistance to conception as a medical service requiring regulation rather than justification. Whether that difference in width is a principled distinction or an accident of drafting two bills in parallel is precisely the question the pending petitions press, and it is taken up in the assessment below. What is not in doubt is the practical instruction the table carries: anyone advising a family in this field must test the facts against both statutes separately, because qualification under one is evidence of nothing under the other.

Sex selection: the prohibition both Acts share

One prohibition runs through both statutes with unusual force, and its prominence is unintelligible without the demographic history behind it. India’s child sex ratio, and the documented practice of sex-selective elimination that the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 was enacted to fight, made every reproductive technology a potential instrument of selection, and the 2021 Acts are drafted as if their drafters had that statute open beside them. The Surrogacy Act prohibits sex selection for surrogacy among the Section 38 offences at the head of its penalty scale. The ART Act prohibits sex selection in Section 26, in terms tied to the 1994 regime, confines pre-implantation genetic testing in Section 25 to screening for known, pre-existing, heritable or genetic diseases, and then, in Section 32, attaches the heaviest single sentence in either Act to the advertising or conduct of sex-selective assisted reproduction: imprisonment of not less than five years extending to ten, or a fine of not less than ten lakh rupees extending to twenty-five lakh, or both. The mandatory minimum is the tell. Parliament, which left the ART Act’s market offences to begin with fines, would not leave judicial discretion at the bottom of the sex selection offence, and the five-year floor places sex selection beside the gravest offences of the surrogacy scheme in the legislature’s own valuation.

The point of connection for the reader is structural. A couple’s lawful journey through the certificates, the clinic’s duties under Section 24 against mixing gametes or splitting embryos, the genetic-testing limits of Section 25 and the offences of Section 32 are all parts of one settlement in which the state permits medicine to decide whether a child is conceived, and increasingly how, while reserving to criminal law the single decision it will not leave to parents or clinics at all, the decision about the child’s sex. The settlement is of a piece with the wider body of reproductive law noted earlier in this article, and it explains why the eligibility debates, which concern who may be a parent, and the selection prohibition, which concerns what may be chosen, proceed on different constitutional tracks in the pending litigation: the petitions attack exclusions from parenthood, and no petitioner defends a liberty to select.

Offences: two penalty philosophies

The two Acts punish overlapping conduct with noticeably different severity, and the difference is a reliable guide to what each legislature feared most. The Surrogacy Act’s offences chapter, Sections 38 to 45, is directed at the market. Section 38 prohibits undertaking or advertising commercial surrogacy, abandoning, disowning or exploiting a child born through surrogacy, exploiting the surrogate mother or the child, selling, buying or trading in human embryos or gametes for surrogacy, importing embryos or gametes for surrogacy, and conducting sex selection for surrogacy; contravention carries imprisonment that may extend to ten years and a fine that may extend to ten lakh rupees. Section 39 punishes contraventions by clinics and practitioners with imprisonment up to five years and a fine up to ten lakh rupees. Section 40 addresses the intending couple or woman and any person who seeks the aid of a clinic or practitioner to conduct surrogacy otherwise than altruistically: a first offence carries imprisonment up to five years and a fine up to five lakh rupees, and a subsequent offence up to ten years and a fine up to ten lakh rupees. Section 41 supplies the residual penalty for contraventions for which no separate punishment is provided, up to three years’ imprisonment and a fine up to five lakh rupees, with a further fine of ten thousand rupees for every day a contravention continues. Section 43 makes the offences cognizable, non-bailable and non-compoundable, a classification Parliament reserves for conduct it treats as grave, and Section 44 channels prosecution through a written complaint by the appropriate authority, or by a person, including a social organisation, who has given the authority not less than fifteen days’ notice, with trial before a Metropolitan Magistrate or a Judicial Magistrate of the first class or above.

The ART Act’s offences chapter, Sections 32 to 37, protects a different frontier. Its gravest single provision, Section 32, punishes whoever advertises or is involved in sex-selective assisted reproduction with imprisonment of not less than five years and up to ten years, or a fine of not less than ten lakh and up to twenty-five lakh rupees, or both, so the Act’s deepest severity is reserved for the sex selection that India’s demographic history makes its standing temptation. Section 33 lists the market offences of the ART field: abandoning, disowning or exploiting a child born through the technology; selling embryos or gametes or running an agency, racket or organisation for their sale, purchase or trade; importing embryos or gametes; exploiting the commissioning couple, the woman or the gamete donor; transferring a human embryo into a male person or an animal; selling an embryo or gamete for research; and using intermediates to obtain donors. The punishment structure differs sharply from the surrogacy scheme: a first contravention of Section 33 is punished with a fine of five to ten lakh rupees, and only a subsequent contravention draws imprisonment of three to eight years with a fine of ten to twenty lakh rupees. Section 34 applies the same scale to residual contraventions, Section 35 confines cognizance to complaints by the National Board, the State Board or an authorised officer, and Section 36 declares the offences cognizable and bailable. Two statutes commenced on the same morning thus classify materially similar misconduct, the sale of gametes, the exploitation of a woman, the abandonment of a child, in opposite bail categories and with inverted first-offence logic, the surrogacy scheme opening with imprisonment and the ART scheme opening with a fine. The divergence is defensible, since commercial surrogacy was the practice Parliament meant to extinguish while ART was a service it meant to civilise, but it is a divergence a practitioner ignores at peril: the same transaction, charged under the wrong Act in a pleading, carries a different exposure.

Why do the two Acts punish similar conduct so differently?

The Surrogacy Act treats its offences as attacks on a prohibition, and makes them cognizable, non-bailable and non-compoundable, with imprisonment from the first offence. The ART Act treats its offences as breaches of a code for a lawful service, opening with fines, reserving imprisonment of three to eight years for repeat contraventions, and classifying them as bailable.

Rules, forms and the machinery of permission

Both Acts are framework statutes, and the volume of law they delegate is the necessary background to the Form 2 episode that follows. Chapter VIII of the Surrogacy Act, Sections 46 to 54, contains the expected closing machinery: the rule-making power of the Central Government, the power of the National Board to make regulations, the requirement that rules and regulations be laid before Parliament, the power to remove difficulties, and the transitional provision in Section 53. The ART Act’s closing chapter, Sections 38 to 46, mirrors the pattern, with rules under Section 42, regulations under Section 43 and laying before Parliament under Section 44. Laying is the constitutional fig leaf of the system: the instruments made under the Acts are placed before the Houses, and in the ordinary course no debate follows, so the practical constitution of this field is that Parliament enacts the architecture, the Ministry drafts the instruments, and the instruments decide the cases. The Surrogacy (Regulation) Rules, 2022, notified as G.S.R. 460(E) on 21 June 2022, made the first and largest exercise of that delegated power under the Surrogacy Act, prescribing the forms of application and certificate, the manner of registration, the conditions of the surrogate’s consent, and the medical grounds of Rule 14.

Form 2, the instrument at the centre of this article’s sharpest episode, is appended to Rule 7 of those Rules and serves as the form for the consent of the surrogate mother and the agreement for surrogacy. Its function explains its power. A form in a schedule of rules is not a mere stationery convenience where the parent scheme makes the form the operative document: the consent the Act requires, the agreement the parties must record, and the terms on which a clinic may lawfully proceed all pass through Form 2, and a paragraph of the form that states which gametes may be used operates, for every clinic and authority in India, with the force of the rule that carries it. The Rules’ other provisions show the same pattern of substance in subordinate dress. Rule 14 enumerates the medical grounds for gestational surrogacy, including in clause (a) the absence of a uterus, an abnormal uterus or a uterus removed for medical reasons, and thereby decides, at the level of a rule, which diagnoses open the statutory door. The number of attempts that may be made in an arrangement, and the number of embryos that may be transferred in a cycle, are likewise prescribed rather than enacted. None of this is unusual in Indian health legislation, and much of it is sensible, since clinical particulars change faster than statutes can. The Form 2 episode is disturbing not because a form was used, but because of what the form was used to decide: not a matter of clinical particular, but the boundary of a class of women’s eligibility to become mothers at all.

The oversight Parliament retains over this machinery is formal rather than real, and the point should be made precisely because it is so often overstated in both directions. The Acts require rules and regulations to be laid before each House, and a House may, by the standard laying formula, modify or annul an instrument within the prescribed period. In practice the laying of a technical amendment to a schedule of forms attracts no motion, no debate and no vote, and the instruments take and keep effect by publication in the Gazette. It follows that the effective legislature for the matters delegated is the drafting desk of the Ministry of Health and Family Welfare, advised by the National Board, and the effective opposition is the constitutional court testing the instrument against the parent Act, which is exactly the sequence the donor gamete episode ran: notification in March 2023, prima facie judicial correction in October 2023, executive reconsideration in February 2024. A reader who understands that sequence understands where, in this field, law is actually made, and why the Gazette, and not the statute book alone, is the practitioner’s first text. The same structure governs the ART side, where the Board’s regulations and the Ministry’s rules carry the clinical detail of the code, and where an amendment of equal practical weight could pass with equal quietness. The series thesis is sometimes mistaken for a complaint about delegation itself. Delegation of clinical particulars is unavoidable and proper. The complaint is narrower and is proved by this episode: when a delegated instrument decides a question of status and eligibility that the parent Act argued about for a decade, the instrument has exceeded the moral warrant of the delegation, whatever its formal validity, and the system then depends on litigation to restore the proportions that the legislative process was designed to supply.

The rule that lived in a form

The Surrogacy (Regulation) Rules, 2022 were notified as G.S.R. 460(E) on 21 June 2022, and among their instruments is Form 2, appended to Rule 7, the form for the consent of the surrogate mother and the agreement for surrogacy. Paragraph 1(d) of that form, in its original state, contemplated the fertilisation of a donor egg by the husband’s sperm among the arrangements the form recorded, and the Act itself says nothing, in terms, about donor gametes in surrogacy at all: the enacted text requires that the child be genetically related to the intending couple or the intending woman, and the question whether one gamete of the two might come from a donor was left to be answered at the level of the rules. Rule 14 of the Rules lists the medical grounds on which gestational surrogacy may be undertaken, and Rule 14(a) covers the woman who has no uterus, an abnormal uterus, or a uterus surgically removed. For a woman in that position who also cannot produce oocytes of her own, donor conception is not a preference but the only route by which the statutory purpose, a child genetically related at least to her husband, can be achieved at all.

On 14 March 2023, by notification G.S.R. 179(E), the Central Government amended the Rules and substituted paragraph 1(d) of Form 2. The substituted paragraph deleted the earlier text and required that a couple undergoing surrogacy use both gametes from the intending couple, so that donor gametes were prohibited in couple surrogacy outright; the same paragraph recorded that a single woman, a widow or divorcee, undergoing surrogacy must use her own eggs and donor sperm. A further procedural amendment in the chain, G.S.R. 772(E) of 10 October 2022, had concerned the manner of swearing the insurance affidavit, and later notifications of June and July 2023 adjusted other particulars; the gamete rule was the amendment of substance, and it was made by the stroke of a form. No bill was introduced, no debate was held, and the change bound every clinic, board and appropriate authority in the country from the day of its publication, because the form is the instrument through which consent and agreement are recorded and a clinic that departed from it acted outside the Rules.

The litigation followed within the year, inside the larger challenge of Arun Muthuvel v. Union of India, Writ Petition (Civil) No. 756 of 2022, in which provisions of both Acts stand challenged and which remains pending. Women with Mayer-Rokitansky-Küster-Hauser syndrome, a condition in which the uterus is absent or underdeveloped and oocytes cannot be produced, sought permission to proceed with gestational surrogacy using a donor egg. A bench of Justices B.V. Nagarathna and Ujjal Bhuyan observed, prima facie, that the March 2023 substitution was contrary to Rule 14(a) of the Rules themselves, since the Rules elsewhere recognised the very medical conditions that made donor conception necessary, and directed District Medical Boards to certify whether the petitioners were capable of producing oocytes. By its interim order of 18 October 2023, the Court permitted the petitioner before it to proceed with gestational surrogacy using a donor egg, staying the operation of the amendment as against her. The Central Government’s defence of the substitution, recorded in the proceedings, was that the Act’s object requires a genetic link between the child and the intending parents so that the child is bonded to them. The orders were interim orders, granted on a prima facie view, and they decided the position only of the petitioners who obtained them; but their reasoning identified the structural fault, that a form had been used to forbid what the parent Act’s own rules contemplated. As applications multiplied, a bench of Justices B.V. Nagarathna and Augustine George Masih directed new applicants seeking permission for surrogacy to approach their jurisdictional High Courts, clarifying that the pendency of the challenges in the Supreme Court was no bar to the High Courts entertaining such cases. The direction is institutionally notable: the Court decentralised interim relief to the constitutional courts of the States rather than letting access to a time-sensitive medical remedy depend on the capacity to reach Delhi, and the High Courts became, for a season, the working forum of surrogacy permission.

On 21 February 2024, eleven months after the prohibition, the Central Government notified the Surrogacy (Regulation) Amendment Rules, 2024, as G.S.R. 119(E), and substituted paragraph 1(d) of Form 2 a second time. The substituted paragraph provides that a couple undergoing surrogacy must have both gametes from the intending couple, however, where the District Medical Board certifies that either the husband or the wife suffers from a medical condition necessitating the use of a donor gamete, surrogacy using a donor gamete is allowed, subject to the condition that the child born through surrogacy must have at least one gamete from the intending couple. The paragraph leaves untouched the rule for the single woman, who must use her own eggs and donor sperm. The position reached is therefore a certified exception: one donor gamete, where a District Medical Board certifies medical necessity, with at least one gamete from the couple; two donor gametes remain outside the scheme, and an arrangement in which neither gamete comes from the intending couple is still not a surrogacy the Act will recognise. Anyone reading summaries of this field written before February 2024 will encounter the March 2023 prohibition stated as the law, and it is the single most common error in the secondary literature of the subject. The form moved twice in eleven months, and only the second movement states the position.

The age limits, the frozen embryos and the judgment of October 2025

The second great contest under the Surrogacy Act concerned time rather than gametes. Section 4(iii)(c)(I) fixes the intending couple’s ages on the day of certification, the woman between twenty-three and fifty and the man between twenty-six and fifty-five, and the Act commenced on 25 January 2022 without regard to how far a couple’s treatment had advanced under the old dispensation. Section 53, the transitional provision, addressed the position of surrogate mothers in arrangements already on foot at commencement, but it said nothing about intending couples who had extracted gametes, created embryos and frozen them, in some cases after years of treatment, and who crossed an age line while waiting. The Union’s position in the litigation was that the transitional provision protected the existing surrogate mothers and no one else, and that couples who had not completed certification before commencement took the new law as they found it. The couples’ answer drew on the constitutional protection of reproductive choice as an aspect of personal liberty, in the line of reasoning that runs through the Puttaswamy privacy judgment: a decision to have a child, lawfully embarked upon and medically irreversible in its timing, could not be defeated by an age line crossed during a delay the couple did not choose.

The Supreme Court decided that contest on 9 October 2025 in Vijaya Kumari S v. Union of India, Writ Petition (Civil) No. 331 of 2024, heard with Urvashi v. Union of India and an interlocutory application in Arun Muthuvel, reported as 2025 INSC 1209. Justice B.V. Nagarathna wrote the judgment, with Justice K.V. Viswanathan concurring. The Court held that the age limits in Section 4(iii)(c)(I) operate prospectively: couples who had extracted gametes and created and frozen embryos before 25 January 2022 had commenced the surrogacy process, their right had crystallised as an exercise of reproductive and decisional autonomy under Article 21 of the Constitution, and the age bar could not be applied to them retrospectively, although they must satisfy every other condition of the Act. The Court expressly declined to rule on the validity of the age limits themselves, which remains open, and it directed that similarly placed couples may approach their jurisdictional High Courts. The judgment is the first delivered ruling of substance on the Act, and its method is instructive: the Court protected the accrued process rather than the abstract claim, reading the statute’s silence about mid-process couples against the State, and left the architecture of the eligibility code intact for everyone whose arrangements began after commencement.

What remains pending should be stated with equal precision, because commentary on this statute habitually promotes challenges into holdings. The lead proceeding, Arun Muthuvel v. Union of India, in which the petitioner, an infertility specialist, challenges provisions of both Acts including the abruptness of the commercial prohibition and the absence of wider transitional protection, awaits final hearing; interim orders within it decided particular applications and nothing more. In Dr. Maheshwara M.V. v. Union of India, a forty-five-year-old divorced man challenges the constitutional validity of Section 2(1)(s), the intending woman definition, pleading Articles 14, 15 and 21 and the doctrine of manifest arbitrariness: a divorced woman of the same age may commission a surrogacy, and he may not, and the petition asks what constitutionally relevant difference carries that distinction. A bench of Justices B.V. Nagarathna and K.V. Viswanathan issued notice in the matter, and it remains pending. In the Delhi High Court, a never-married woman of forty-four has challenged her exclusion from the surrogacy statute on Articles 14 and 21, and the Court has expressed concern at the exclusion while the matter proceeds; petitions in the High Courts have also questioned the ART Act’s age discipline in Section 21(g). None of these proceedings has produced a delivered judgment on the validity of the provisions they attack, and this article records them as pending without prediction, as the stance of the series requires where the courts are seized of a question and have not answered it.

The position assembled: the regime as it stands after the amendments

It may help the reader to assemble, in one passage, the operative position that results from the statute, the rules, the two substitutions of Form 2 and the October 2025 judgment, since no single instrument states it whole. Surrogacy in India is lawful only in its altruistic form, only for an intending couple with a certified medical indication necessitating gestational surrogacy or for an intending woman who is a widow or divorcee between thirty-five and forty-five, only through a registered clinic, and only after the certificates of essentiality and eligibility and the surrogate’s own eligibility certificate have issued. The surrogate must be an ever-married, willing woman of twenty-five to thirty-five with a child of her own, acting once in her lifetime, medically and psychologically certified, insured for thirty-six months, and consenting in writing in a language she understands. The child must be genetically related to the intending couple or woman; for a couple, both gametes must be theirs unless a District Medical Board certifies a medical condition necessitating a donor gamete, in which case one donor gamete is permitted and at least one gamete must still come from the couple; for an intending woman, her own eggs and donor sperm are the prescribed combination. The age conditions of the couple are tested on the day of certification, save that a couple which had extracted gametes and created and frozen embryos before 25 January 2022 is protected by the October 2025 judgment from the retrospective application of the age bar, on satisfying every other condition. The child is deemed the biological child of the intending parents from birth, on the foundation of the Magistrate’s parentage and custody order. Commercial surrogacy, in every direction, is an offence at the head of a non-bailable code. Assisted reproduction outside surrogacy proceeds under the ART Act’s wider gate: a commissioning couple, or a woman above twenty-one in her own right, within the individual age bands of Section 21(g), at a registered clinic or through a registered bank, under the donation, storage and record disciplines of Sections 22 to 31.

Stated in that assembled form, the regime’s character is plain, and its two open seams are equally plain. The first seam is litigation-shaped: the validity of the age limits as such, the exclusion of the divorced and never-married, and the wider grounds of the Arun Muthuvel challenge all await judgment, and any of them, if it succeeds, will rewrite a line of the assembly above. The second seam is instrument-shaped: every element of the assembly that lives in the rules and the form, the donor gamete exception, the medical grounds of Rule 14, the attempt and embryo numbers, can be rewritten again by notification, in either direction, without a bill; the February 2024 substitution is unlikely to be the last movement of paragraph 1(d) over the life of the Act, and the practitioner who advises from a printed summary of this field without checking the Gazette of the rules is advising from a photograph of a moving object. That is the practical corollary of the series thesis with which this article began, and it is the note on which the analysis properly ends before the questions readers most frequently ask are answered in short form.

The profession’s objection: a lawful practice ended overnight

A constituency distinct from both the prohibitionists and the women’s rights critics deserves separate statement, because it produced the lead litigation: the medical profession that had practised under the guidelines. Dr Arun Muthuvel, the petitioner in the principal challenge to both Acts, is an infertility specialist, and the grounds of his petition, as they emerge from the proceedings, are the grounds of a practitioner rather than an ideologue: that a practice lawful for two decades was prohibited with penal consequences in a single commencement, that the statutes contain ambiguities at points where clinics must act, and that no transitional provision protected patients whose treatment was mid-course when the Acts began. The transitional objection was the one the Supreme Court eventually vindicated in the October 2025 judgment, in the limited form of protecting couples who had created and frozen embryos before commencement. The profession’s wider complaint is audible in the provider survey already cited, in the reports of registration certificates delayed, inspections not carried out and fees pitched at levels small clinics could not carry: the complaint of a sector that accepts regulation in principle, having asked for a statute since the guideline era, and objects to a commencement that treated two decades of lawful practice as a prelude to offence. Against it stands the legislature’s evident answer, that a transitional generosity toward the market would have entrenched precisely the arrangements the Act was passed to end, and that the surrogate mothers in being on commencement morning were the one class whose protection could not wait, which is the protection Section 53 supplied. The disagreement is recorded here because it explains the litigation’s shape: the first delivered judgment on the Act came not on the morality of surrogacy but on the rights of patients caught by the calendar, the ground on which the profession’s objection was strongest.

The case for the restrictive regime

The case for the settlement Parliament enacted is a case about what markets do to the vulnerable when the commodity is a woman’s body for nine months, and its holders state it without embarrassment. The Law Commission’s 228th Report reached the prohibition on commercial surrogacy in 2009, before the worst of the market’s scandals, on the reasoning that gestation for hire placed poor women in a transaction whose bargaining conditions could not be made fair by contract terms, because the seller’s poverty was the market’s foundation. The legislative defence of the 2021 Acts ran on the same line. Moving the ART Bill, the Minister of Health and Family Welfare told the Lok Sabha that many clinics had been running without regulation, that the absence of regulation would increase unethical practices, and that the implications for the health of those who undertook the procedures demanded a statutory framework; the same reasoning, extended to surrogacy, holds that a practice policed only by guidelines produced the hostel regimes, the withheld payments and the abandoned children of the record, and that the only line a statute can actually enforce is the line at payment, since every attempt to licence compensated surrogacy must define permissible payment, police intermediaries and audit intimacy, tasks at which the guideline era demonstrably failed. On this view the altruistic condition is not a moral ornament but the enforcement mechanism itself: remove the fee, and the recruiter, the broker and the hostel disappear with it, because there is no longer a margin to support them.

The Central Government’s defence of the donor gamete restriction, made in the Supreme Court proceedings, belongs to the same family of argument: the Act’s object, the Government submitted, requires a genetic link between the child and the intending parents, so that the child is bonded to the family it joins, and a surrogacy in which neither gamete comes from the couple is, on that submission, an arrangement for the production of a child to order rather than the completion of a couple’s own parenthood. Defenders of the eligibility exclusions argue in the same register that the state may legitimately channel a scarce and risky medical practice toward the family form it judges most stable for the child, that marriage is an administrable proxy for commitment in a way that judicial inquiry into each relationship could never be, and that the ART Act’s wider gate shows the legislature extending help where the risks of exploitation fall, on the woman treating her own body, rather than where a third party’s body is engaged. On the compensation question, the defenders’ answer to the Select Committee’s rejected proposal is that paying for gestation, however the payment is labelled, recreates the market under a politer name, and that the Committee’s own acceptance in principle of the altruistic frame shows how narrow the real disagreement was.

The case against the settlement

The case against is made from inside the women’s rights movement as much as from the fertility industry, and it begins with the observation that prohibition displaces transactions rather than ending them. Sama, the Resource Group for Women and Health, and researchers associated with its work argued through the bill years that an altruistic-only regime would promote a black market and, worse, would relocate coercion where no regulator can see it: inside the family, where the willing woman of the Act is liable to be a daughter-in-law or a younger sister whose willingness is manufactured by the same household that will receive the child, and whose unpaid labour is extracted precisely because the law forbids her to price it. Amrita Pande’s ethnography supplies the empirical counterweight to the exploitation narrative: the women she studied at Anand described surrogacy as work they had chosen for family purposes, spoke of the earnings in terms of houses built and children educated, and resented the portrayal of themselves as passive victims; a law that removes their chosen remedy in the name of protecting them, the argument runs, protects an idea of womanhood at the expense of actual women. Dr Nayana Patel of the Akanksha Hospital at Anand, who built the best-known surrogacy practice of the market era, put the practitioner’s version bluntly in the bill debates: the Act, she said, was formulated on a myth that surrogates are exploited, the close-relative design then under consideration would subject relatives to tremendous emotional and social pressure to be selfless, money given to a surrogate should be seen as compensation rather than payment, and surrogacy in her experience empowered the women who undertook it. Her institutional interest in the answer is obvious, and the argument survives it: a nine-month undertaking of real risk and discomfort, for which the law mandates insurance against its dangers, is the only form of labour in the Indian economy that the law insists must be donated.

The equality limb of the case against is the one the courts are seized of, and its holders plead it in constitutional language. The divorced man’s petition states it in its cleanest form: Section 2(1)(s) admits a divorced woman and excludes a divorced man, and if the statute’s concern is the welfare of the child, the petition asks why the sex of the single parent decides the question; the never-married woman’s petition adds that the statute prefers a woman whose marriage has ended over a woman who never married, a distinction that tracks marital history rather than any property of parenthood. The critics add the internal inconsistency recorded in the table above: the ART Act trusts a never-married woman of twenty-five with donor conception carried in her own body, while the Surrogacy Act refuses the same woman a surrogate’s help at forty, so the legislature’s protective theory must explain why her autonomy suffices for the one decision and not the other. Finally, the delegated legislation objection is common ground between the critics and this series’ own thesis: whatever the merits of the donor gamete rule, a restriction that determined whether women with a named medical syndrome could become mothers was imposed and relaxed by notifications amending a form, instruments that were never laid before Parliament in any debate a citizen could attend, and a settlement of that sensitivity deserved the visibility of primary legislation.

A further strand of the criticism, associated with N.B. Sarojini of Sama, questions the premise the whole apparatus shares with the industry it regulates: that infertility is a crisis to which technological conception is the obvious answer. Sarojini’s formulation, given in the debate over the industry’s growth, was that the ART clinics pose themselves as the answer to an illusory crisis of infertility, that the interval couples allow before seeking treatment has shortened under commercial pressure from years to months, and that the culture’s spotlight might better fall on alternatives, including adoption and the legitimacy of remaining childless. The point survives the statutes, because the 2021 settlement regulates the technological answer in exhaustive detail while leaving the social question, why a childless marriage is treated as a failed one, exactly where the market found it. Defenders of the settlement reply, with some force, that a statute on clinics cannot be faulted for not reforming the culture, and that couples who seek treatment are exercising a choice the law should serve rather than lecture. The exchange is recorded because it marks the outer boundary of the debate: inside it, everyone argues about the gates; outside it, Sarojini’s question asks why the queue at the gate is so long, and neither Act attempts an answer.

Reading the two Acts together

A practitioner advising in this field works with a checklist of differences between the two statutes, and the checklist is worth stating as a whole because each item on it has generated a real error in advice given somewhere. The trigger differs: surrogacy requires a medical indication necessitating gestational surrogacy certified by a District Medical Board, while ART requires only infertility as the ART Act defines it, one year of unprotected coitus or another proven medical condition, or, for a woman approaching a clinic, simply her status as a woman above twenty-one seeking the services. The unit of eligibility differs: the Surrogacy Act certifies couples and one defined class of single woman, while the ART Act’s age discipline in Section 21(g) attaches to the individual woman and man who present for treatment. The insurance differs in subject and period: thirty-six months for the surrogate mother under the Surrogacy Act, covering postpartum complications, against twelve months for the oocyte donor under Section 22 of the ART Act, the periods reflecting the different durations of the risks insured, a pregnancy carried to term against a stimulation and retrieval cycle. The complaint channel differs: under Section 44 of the Surrogacy Act a prosecution may begin on the complaint of the appropriate authority or of any person, including a social organisation, who has given the authority fifteen days’ notice, a deliberately public gateway consistent with the Act’s concern for women who may have no protector; under Section 35 of the ART Act cognizance is confined to complaints by the National Board, the State Board or an officer authorised by either, a regulator’s gateway consistent with a service code. The corporate liability differs in drafting but not in spirit: Section 37 of the ART Act deems the executive head of a clinic or bank guilty of the institution’s offence unless due diligence is proved, and the Surrogacy Act’s closing provisions proceed on the same policy of fixing responsibility at the top of the institution.

The deepest difference is the one the table visualises, and it can be stated as a rule of method. The Surrogacy Act asks who the parties are and answers with definitions of status: couple, intending couple, intending woman, surrogate mother, each fenced by age, marital history and existing children. The ART Act asks what is being done and answers with a code of conduct for clinics and banks: registration, consent, screening, storage, records and prohibitions on sale and export. A status statute fails by exclusion, and its litigation is equality litigation; a conduct statute fails by breach, and its litigation is enforcement. That is why the constitutional challenges cluster on the Surrogacy Act’s definitions while the ART Act’s contests run to age discipline and registration, and why the two statutes, for all their shared machinery, will age differently: the conduct code can be tightened by regulation as medicine changes, while every change to the status code reopens the question of who may be a parent, the question on which the legislature’s choices are most exposed and least amendable by form.

Assessment: the verdict this record supports

The stance charter of this series requires the competing cases to be stated at full strength, which has been done, and permits a verdict where the evidence supports one. On the moral question at the centre, whether gestation may be paid for, the record assembled here does not compel a single answer, and this article adopts neither the prohibitionist nor the compensation position: the exploitation documented in the market era is real, and so is the testimony of the women who experienced the same market as the best economic choice available to them, and a legislature choosing between those records was choosing between genuine harms. On the institutional questions, however, the evidence does support conclusions, and they should be stated plainly. First, the eligibility code of the Surrogacy Act, as enacted, is precise, internally complete and capable of exact statement, and the popular errors about it, the five-year marriage condition, the close relative requirement, the sixteen-month insurance period, are bill history that should be retired from reference works. Second, the divergence between the two Acts on single women is not a drafting slip but a structural consequence of defining one statute around gestation by another and the other around a medical service, and it will either be rationalised by the courts in the pending petitions or revised by Parliament; it cannot be explained away by practitioners, and advice that ignores it is incomplete. Third, and most sharply, the Form 2 episode is a demonstrated instance of the series thesis in its most personal form. A rule of eligibility that decided whether identifiable women could become mothers was made by substituting a paragraph in a form, was softened only after the Supreme Court intervened on a prima facie view that it contradicted the Rules it lived under, and was corrected by the same silent instrument eleven months later. Parliaments may delegate the filling of forms. When the form decides the substance, the delegation has swallowed the statute, and the remedy lies where it lay in February 2024: in the discipline of those who draft the instruments, checked by courts willing to test a form against the Act and the Rules that authorise it.

Fourth, and by way of balance, the registration achievement should not be lost inside the criticism. Whatever the fate of the eligibility code in the pending petitions, the conversion of an unlicensed sector into a registered one, with a public register, a single national database, insured donors and surrogates, recorded consent, preserved records and a child whose status is deemed rather than litigated, is a permanent gain in the governance of Indian medicine, and it was achieved by the same two statutes whose exclusions are contested. A future Parliament that widened the gates would inherit the machinery entire, which is the strongest evidence that the machinery and the gates are separable questions. The criticism this article has sustained is directed at the gates, and at the forms that move them in silence; the frame within which any future settlement will operate is the frame of January 2022, and on the record of the guideline era that preceded it, the frame itself is not the problem.

Arrangements across borders

The cross-border dimension of this field did not end in 2022; it changed direction. The administrative closure of the middle of the previous decade, the Department of Health Research notification of 4 November 2015 and the Home Affairs and Commerce notifications that accompanied it, barred foreign nationals and overseas citizens of India from commissioning surrogacy in India and barred the import of human embryos except for research. The 2021 Acts consolidated that closure in statutory form. The Surrogacy Act’s definitions are written for Indian couples and Indian intending women; its single bridge to the diaspora is the certificate of recommendation of the National Board, required for a couple of Indian origin under the proviso to Section 4(ii)(a), which routes such a couple through the Board’s scrutiny rather than through the ordinary certificate channel alone. Section 38 makes the import of human embryos or gametes for surrogacy an offence at the ten-year end of the penalty scale. The ART Act seals the same frontier from the laboratory side: Section 29 prohibits the sale, transfer or use of gametes, zygotes and embryos to any party within or outside India except a person’s own material moved for personal use with the National Board’s permission, and Section 30 prohibits the transfer of gametes or embryos outside India for research purposes without exception.

The questions that reach advisers in this area are usually the reverse of the old traffic. An Indian couple settled abroad asks whether an arrangement lawfully made in another country can be brought home, or whether embryos frozen in an Indian clinic before a move overseas can follow them, or whether a wife who is a foreign citizen can be the female half of an intending couple. The Acts answer parts of these questions and are silent on others, and the silences should be reported honestly. The definition of couple requires a legally married Indian man and woman, which answers the third question against eligibility where either spouse is not Indian. The export of a couple’s own embryos for personal use is possible only through the National Board’s permission under Section 29, which answers the second question with a procedure rather than a right. The first question, the recognition in India of a foreign surrogacy and the status of a child born under it, is not answered by either Act at all, because the Acts regulate conduct within the Indian system and do not constitute a recognition code; families in that position are in the territory of citizenship law, passport practice and the discretion of authorities, exactly the territory in which Baby Manji was improvised, and they should be advised that the 2021 settlement, for all its completeness at home, left the inbound case where it found it.

The practical sequence for an intending couple

For a family testing its own position, the statutes prescribe an order of operations, and the order matters because each certificate presupposes the one before. The couple first establishes the medical foundation: a consultation at a registered surrogacy clinic, and then the certificate of medical indication necessitating gestational surrogacy from the District Medical Board of the district, without which nothing else in the machinery moves. The surrogate must be identified and must come forward as a willing woman; she obtains her certificate of medical and psychological fitness from a registered medical practitioner, and the parties apply together to the appropriate authority. The insurance for the surrogate, for thirty-six months covering postpartum complications, is arranged with an insurer or agent recognised by the Insurance Regulatory and Development Authority. The application for the order on parentage and custody goes to the Magistrate of the first class, and the appropriate authority, on the assembled documents, issues the certificate of essentiality and the certificate of eligibility, the couple’s ages and surviving-child position being tested on the day of certification. A couple of Indian origin follows the additional route of the Board’s certificate of recommendation. Only with the certificates in hand may the clinic lawfully proceed, and the written informed consent of the surrogate, in a language she understands, precedes the procedure. Families assembling this dossier handle a small archive of medical reports, board certificates and court orders, frequently received as scanned documents and office files from clinics and authorities, and a reader verifying a clinic’s papers can open such Word, Excel and presentation files in the browser with an office file viewer for certificates and medical reports before the originals are filed. This article states the law as enacted and amended for information; it is not legal advice for any individual arrangement, and a family whose facts touch the exclusions, the age lines or the donor gamete conditions should take advice on its own documents before it acts on them.

Two closing cautions belong to the record. The first is about the foreign door that many older accounts leave ajar: arrangements involving foreign commissioning parents were closed administratively from late 2015 and the 2021 Act is written for Indian couples and intending women, with the Board’s recommendation certificate as the only bridge for couples of Indian origin, so a family that begins an arrangement abroad or with a foreign clinic on the assumption that the child can simply be brought within the Indian scheme is building on sand. The second caution is about time. The age conditions are tested on the day of certification, embryos frozen before 25 January 2022 carry the protection of the October 2025 judgment only for couples who can show the process had commenced, and the donor gamete exception depends on a District Medical Board certificate obtained before the arrangement proceeds. In this field the sequence of documents is not bureaucracy laid over the law; the sequence is the law, and the statutes reward the family that assembles it in order.

One verification habit protects a family at every step of that sequence: test the clinic against the public register before testing anything else. A clinic that cannot produce a registration under the applicable Act, or whose registration does not appear on the National Registry’s portal, cannot lawfully proceed however complete the family’s own papers are, and Section 15 of the ART Act and the registration chapter of the Surrogacy Act make the family’s treatment by an unregistered clinic unlawful from the first consultation rather than from the first procedure. The same habit applies to the bank supplying any donor gamete, since Section 27 of the ART Act permits sourcing only through a registered bank. Families are sometimes told that registration is a formality the clinic will complete in parallel; the statutes do not contemplate parallel formalities, and the couple that proceeds on that assurance carries the risk that every later certificate is built on an unlawful foundation. Registration first, certificates second, procedure last: the order is the regime in miniature.

Frequently Asked Questions

Q: Is commercial surrogacy legal in India?

No. The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy outright, and Section 3 forbids surrogacy clinics from undertaking or promoting it in any form. Section 2(1)(g) defines commercial surrogacy to cover every arrangement in which a benefit beyond medical expenses and insurance coverage reaches the surrogate mother or her dependants. The only lawful model is altruistic surrogacy under Section 2(1)(b), in which no charges, fees, remuneration or monetary incentive of any kind may be given, apart from the surrogate’s medical expenses, prescribed expenses and insurance. Undertaking or advertising commercial surrogacy is an offence under Section 38, punishable with imprisonment up to ten years and a fine up to ten lakh rupees, and the offences are cognizable and non-bailable.

Q: Who can commission surrogacy under the 2021 Act?

Two categories of applicant qualify. The first is an intending couple: a legally married Indian man and woman who hold a certificate of medical indication necessitating gestational surrogacy, a certificate of essentiality and a certificate of eligibility under Section 4. On the day of certification the woman must be between twenty-three and fifty years and the man between twenty-six and fifty-five, and the couple must have no surviving child, subject to an exception for a child who is mentally or physically challenged or suffers a life-threatening disorder with no permanent cure. The second category is an intending woman, defined by Section 2(1)(s) as an Indian woman who is a widow or a divorcee between thirty-five and forty-five years. Nobody else qualifies as enacted.

Q: Who can be a surrogate mother?

Section 4(iii)(b) of the Surrogacy Act states her conditions, and the appropriate authority certifies them in her eligibility certificate. She must be an ever-married woman having a child of her own, between twenty-five and thirty-five years of age on the day of implantation. She must be a willing woman who comes forward with the intending couple or intending woman; the enacted Act does not require her to be a relative of the family, the close-relative condition of the earlier Bills having been replaced on the Select Committee’s recommendation. She must not provide her own gametes, so the arrangement is gestational only. She may act as a surrogate only once in her lifetime, and she must hold a certificate of medical and psychological fitness from a registered medical practitioner.

Q: When are donor gametes allowed in surrogacy?

The answer is governed by paragraph 1(d) of Form 2 to the Surrogacy (Regulation) Rules, 2022, and it changed twice in eleven months. The original form contemplated donor conception. A notification of 14 March 2023, G.S.R. 179(E), substituted the paragraph to require both gametes to come from the intending couple, prohibiting donor gametes in couple surrogacy. The Surrogacy (Regulation) Amendment Rules, 2024, notified on 21 February 2024 as G.S.R. 119(E), substituted the paragraph again: a couple must use both of its own gametes, however, where the District Medical Board certifies that either spouse suffers from a medical condition necessitating a donor gamete, one donor gamete is permitted, provided the child has at least one gamete from the intending couple. A widow or divorcee must use her own eggs with donor sperm.

Q: What does the Assisted Reproductive Technology Act regulate?

The Assisted Reproductive Technology (Regulation) Act, 2021 regulates the clinics and banks that provide assisted reproduction in India. It requires every ART clinic and ART bank to be registered, with registration valid for five years and renewable, and it establishes the National Registry of clinics and banks under Section 9 as the central database of the field. It prescribes standards and duties for clinics and banks, including written informed consent, the age bands for services, limits on the number of oocytes or embryos transferred in a cycle, and a prohibition on sex selection. It disciplines gamete donation through registered banks, with age bands for donors, a once-in-a-lifetime limit for oocyte donors and a ceiling of seven oocytes. It deems a child born through the technology to be the biological child of the commissioning couple or woman, and it punishes offences including the sale of gametes and embryos.

Q: Why do the surrogacy and reproductive technology laws differ on single women?

The difference is written into the two Acts’ definitions. The Surrogacy Act admits a single woman only through the intending woman definition in Section 2(1)(s), which requires her to be a widow or a divorcee between thirty-five and forty-five years; a never-married woman is outside it. The ART Act, by Section 2(1)(u), defines a woman as any woman above the age of twenty-one years who approaches a clinic or bank for services, so a never-married woman may receive assisted reproduction in her own right. The structural explanation is that the surrogacy statute governs gestation by another woman and was drafted around protection and marital status, while the ART statute governs a medical service provided to the woman herself. Whether the distinction is constitutionally sustainable is the subject of pending petitions by unmarried women.

Q: What is the legal status of a child born through surrogacy?

Section 8 of the Surrogacy Act deems the child born through surrogacy to be the biological child of the intending couple or the intending woman, entitled to all the rights and privileges available to a natural child under any law in force. The position is fixed before the birth, because the certificate of essentiality requires an order on parentage and custody from a Magistrate of the first class, and the Act directs that the order be treated as the birth affidavit after the child is born. The intending parents are therefore the child’s legal parents from birth, the surrogate has no parental status, and Section 7 makes it an offence for the intending couple or woman to abandon the child for any reason whatsoever.

Q: What challenges to the surrogacy law are pending?

The lead challenge is Arun Muthuvel v. Union of India, Writ Petition (Civil) No. 756 of 2022, in which provisions of both the Surrogacy Act and the ART Act stand challenged, including the abruptness of the commercial prohibition and the absence of wider transitional protection; it awaits final hearing, and the orders passed in it so far are interim. In Dr. Maheshwara M.V. v. Union of India, a divorced man challenges Section 2(1)(s), which admits divorced women and not divorced men, pleading Articles 14, 15 and 21; the Supreme Court has issued notice. A never-married woman’s challenge to her exclusion is pending in the Delhi High Court. One related question is no longer pending: on 9 October 2025 the Supreme Court held the Section 4 age limits to be prospective, protecting couples who had frozen embryos before commencement, while leaving the validity of the limits undecided.

Q: What certificates does an intending couple need before surrogacy can begin?

Three documents must be assembled under Section 4(iii) of the Surrogacy Act. The certificate of essentiality issues from the appropriate authority when three conditions are met: a District Medical Board certificate of medical indication necessitating gestational surrogacy; an order on the parentage and custody of the child from a Magistrate of the first class, which later serves as the birth affidavit; and insurance coverage for the surrogate mother for thirty-six months covering postpartum complications, from an insurer or agent recognised by the Insurance Regulatory and Development Authority. The certificate of eligibility certifies the couple’s own position: married status, the statutory age bands and no surviving child, subject to the stated exception. The surrogate mother requires her own eligibility certificate covering her age, her child, her willingness and her medical and psychological fitness.

Q: What are the age limits for an intending couple under the Surrogacy Act?

Section 4(iii)(c) fixes the bands on the day of certification: the woman must be between twenty-three and fifty years of age and the man between twenty-six and fifty-five years. An intending woman proceeding alone as a widow or divorcee must be between thirty-five and forty-five years under Section 2(1)(s), and the surrogate mother must be between twenty-five and thirty-five years on the day of implantation. The bands operate as conditions of the eligibility certificate, so a couple outside them cannot be certified even with a clear medical indication. By the Supreme Court’s judgment of 9 October 2025, the couple bands operate prospectively: a couple that had extracted gametes and created and frozen embryos before the Act commenced on 25 January 2022 is not defeated by crossing an age line afterwards, although every other condition must still be satisfied.

Q: Can a couple who already have a child commission surrogacy?

Ordinarily, no. Section 4(iii)(c) conditions the intending couple’s eligibility certificate on the couple having no surviving child, whether the child is theirs biologically, by adoption or through an earlier surrogacy. The bar is directed at the use of surrogacy to extend a family that is already complete, rather than to found one. A single exception is written into the provision: the bar does not apply where the couple’s existing child is mentally or physically challenged, or suffers from a life-threatening disorder or fatal illness with no permanent cure. That exception is not self-executing. It must be certified by the District Medical Board and approved by the appropriate authority, so the couple’s medical evidence is tested by the same two institutions that govern the rest of the certificate machinery.

Q: Can foreign nationals or couples of Indian origin commission surrogacy in India?

Foreign nationals cannot. Arrangements involving foreign commissioning parents were closed administratively from late 2015, when a Department of Health Research notification of 4 November 2015 and accompanying Home Affairs and Commerce notifications barred foreign nationals and overseas citizens of India from commissioning surrogacy in India and barred the import of human embryos except for research. The Surrogacy Act is written consistently with that closure: its couple definition requires a legally married Indian man and woman, and its intending woman must be an Indian woman. One bridge exists for the diaspora. A couple of Indian origin follows a distinct route under the proviso to Section 4(ii)(a) and must obtain a certificate of recommendation from the National Board, in addition to satisfying the ordinary conditions through the certificate machinery.

Q: What insurance cover must be arranged for the surrogate mother?

Insurance is one of the three components of the certificate of essentiality under Section 4(iii)(a). The intending couple or intending woman must obtain coverage in favour of the surrogate mother for a period of thirty-six months, covering complications arising during the postpartum delivery period, from an insurance company or an insurance agent recognised by the Insurance Regulatory and Development Authority. The period was sixteen months in the Bill as introduced and was raised to thirty-six months on the recommendation of the Select Committee, a change the enacted Act carries. The cover is a condition precedent: without it the appropriate authority cannot issue the certificate of essentiality and the arrangement cannot lawfully proceed. It protects the surrogate against the medical costs of the pregnancy’s aftermath irrespective of the intending couple’s means or willingness to pay at that stage.

Q: How many oocytes may a donor give under the ART Act?

Section 27 of the ART Act confines oocyte donation tightly. An oocyte donor must be between twenty-three and thirty-five years of age, she must be examined for the diseases prescribed, and she may donate only once in her lifetime. Not more than seven oocytes shall be retrieved from her. Donation is possible only through a registered ART bank, and a bank shall not supply the oocyte of a single donor to more than one commissioning couple or woman. The commissioning couple or woman must also arrange insurance coverage for twelve months in favour of the oocyte donor under Section 22. The sperm donor’s discipline is parallel in structure: a donor between twenty-one and fifty-five years, examined for prescribed diseases, whose sperm a bank may supply to only one commissioning couple or woman.

Q: What are the penalties for commercial surrogacy?

Section 38 of the Surrogacy Act punishes undertaking or advertising commercial surrogacy, and the connected offences of exploiting the surrogate mother or the child, trading in embryos or gametes for surrogacy, importing them for surrogacy and conducting sex selection for surrogacy, with imprisonment that may extend to ten years and a fine that may extend to ten lakh rupees. Section 40 addresses the demand side: an intending couple or woman, or any person, who seeks the aid of a clinic or practitioner to conduct surrogacy otherwise than altruistically faces imprisonment up to five years and a fine up to five lakh rupees for a first offence, and up to ten years and ten lakh rupees for a subsequent offence. Section 43 makes the offences cognizable, non-bailable and non-compoundable.

Q: What did the Supreme Court decide in 2025 about couples who had crossed the age limits?

In Vijaya Kumari S v. Union of India, decided on 9 October 2025 and reported as 2025 INSC 1209, the Supreme Court held that the age limits in Section 4(iii)(c)(I) of the Surrogacy Act operate prospectively. Couples who had extracted gametes and created and frozen embryos before the Act commenced on 25 January 2022 had commenced the surrogacy process, and their right had crystallised as an exercise of reproductive and decisional autonomy under Article 21, so the age bar could not be applied to them retrospectively. Justice B.V. Nagarathna wrote the judgment and Justice K.V. Viswanathan concurred. The Court expressly declined to rule on the validity of the age limits themselves, which remains open, and similarly placed couples were directed to approach their jurisdictional High Courts. The petitioners still had to satisfy every other condition of the Act.

Q: What is the National ART and Surrogacy Registry?

The Registry is the central database of the two Acts. Section 9 of the ART Act provides for the establishment of the National Registry of clinics and banks by notification of the Central Government, and Section 15 of the Surrogacy Act recognises the same Registry for surrogacy clinics, with Section 16 applying the ART Act’s Registry provisions to them. It holds the particulars of registered ART clinics, ART banks and surrogacy clinics, the services they provide and their outcomes, and its data feed the National Board’s policy, guidelines and research functions. The register is in the public domain through the Registry’s portal, so a patient can verify a clinic’s registration. Figures attributed to the Registry showed 4,448 ART clinics, 1,179 ART banks and 854 surrogacy clinics as having filed for registration as on 15 May 2023.

Q: How long may gametes and embryos be stored under the ART Act?

Section 28 of the ART Act fixes the storage period at ten years. On the expiry of that period, the stored gametes or embryos must be allowed to perish, or they may be donated to a registered research organisation with the consent of the commissioning couple or the parties concerned. Storage itself requires specific written consent, since Section 22 forbids a clinic to cryopreserve gametes or embryos without it. The documentary obligations run on the same clock: Section 23 requires clinics and banks to maintain their records for at least ten years and thereafter to transfer them to the National Registry. Sections 29 and 30 complete the frame by prohibiting the sale or transfer of gametes and embryos to any party within or outside India, except a person’s own material moved for personal use with the National Board’s permission, and by prohibiting transfers abroad for research altogether.

Q: Do the Surrogacy Act and the ART Act share the same boards and authorities?

Yes, deliberately. The ART Act does not create a second set of boards. By Sections 3 and 4, the National Board constituted under Section 17 of the Surrogacy Act serves as the National Board for the ART Act, with the Surrogacy Act’s Board provisions applied with the necessary adaptations, and Sections 6 and 7 do the same for the State Boards constituted under Section 26 of the Surrogacy Act. The National Registry is likewise single, established under Section 9 of the ART Act and recognised by Section 15 of the Surrogacy Act. Appropriate authorities are appointed under each Act, under Section 12 of the ART Act and Section 35 of the Surrogacy Act, and they perform the operational work of registration, standards and, under the Surrogacy Act, certification. One supervisory structure therefore governs both statutes.

Q: Can a single man access assisted reproductive technology in India?

The Acts give him no route as a single person. ART services are defined by the transfer of a gamete or embryo into a woman’s reproductive system, and the persons the ART Act serves are the commissioning couple, defined as an infertile married couple, and a woman, defined as any woman above twenty-one years who approaches a clinic or bank. There is no definition under which a single man can receive services or commission treatment in his own right. The Surrogacy Act is closed to him for a parallel reason: it admits an intending couple and an intending woman, and no intending man category exists. The exclusion is under constitutional challenge. A divorced man has petitioned the Supreme Court against Section 2(1)(s), pointing out that a divorced woman in his position qualifies, and that petition is pending.