Surrogacy Agreement (Altruistic) — India

A Surrogacy Agreement (Altruistic) in India governs the arrangement between the parties and the conditions on which it operates.

The Surrogacy (Regulation) Act 2021 received Presidential assent on 25 December 2021 and came into force on 25 January 2022. Parliament enacted the law to ban commercial surrogacy, which had made India a global surrogacy destination in the 2000s and early 2010s, raising ethical concerns about exploitation of economically disadvantaged women. The Act replaced an earlier Draft ART Bill and specifically prohibits commercial surrogacy under Section 4(ii), making it punishable with imprisonment of up to 10 years and a fine of up to ₹10 lakhs under Section 35.

The regulatory framework under the Surrogacy (Regulation) Act 2021 involves multiple bodies. The National Surrogacy Board (NSB), constituted under Section 5, is the apex regulatory authority. State Surrogacy Boards (SSBs) under Section 9 regulate surrogacy at the state level. The Appropriate Authority at the district level under Section 10 — a joint committee of district health, legal, and administrative officers — handles registration of surrogacy clinics and approvals for individual surrogacy procedures. Only clinics registered under both the Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology (Regulation) Act 2021 (ART Act) may conduct surrogacy procedures.

Eligibility for surrogacy under the Act is narrowly defined. The intending couple must be a married man and woman, or a widow or divorcee (as per the Surrogacy (Regulation) Amendment Rules 2023), with a medical condition necessitating surrogacy as certified by the District Medical Board. The surrogate must be a close relative of the intending couple — a sister, sister-in-law, or equivalent close family member — aged 25 to 35 years, having at least one child of her own, and certified medically and psychologically fit. Foreign nationals, same-sex couples, and live-in partners are not eligible under the current Act.

The surrogacy agreement itself must be in writing, registered with the Appropriate Authority, and approved before the IVF procedure commences. Both the intending couple and the surrogate must have received independent legal advice on the contents and implications of the agreement. The agreement must address the full scope of obligations — medical treatment, insurance, permitted expenses, legal parentage of the child, and the surrogate's rights during and after pregnancy — to comply with the Surrogacy (Regulation) Rules 2022 and the guidance issued by the National Surrogacy Board.

An Altruistic Surrogacy Agreement under the Surrogacy (Regulation) Act 2021 is required in India as a mandatory precondition before any assisted reproductive technology (ART) procedure — IVF or embryo transfer — is performed as part of a surrogacy arrangement. No registered ART clinic may commence a surrogacy procedure without a validated surrogacy agreement.

Married couples where either the wife cannot carry a pregnancy due to a medical condition — including absent or abnormal uterus (Mayer-Rokitansky-Küster-Hauser syndrome), repeated IVF failures, recurrent miscarriages certified by the District Medical Board, or life-threatening medical conditions that make pregnancy dangerous — must execute a surrogacy agreement before commencing the surrogacy process. The Certificate of Essentiality from the District Medical Board is a prerequisite document that must precede the agreement.

Widows aged 35 to 45 years and divorcees aged 35 to 45 years who wish to have a child through surrogacy under the Surrogacy (Regulation) Amendment Rules 2023 must execute a surrogacy agreement with an eligible close relative who meets the surrogate eligibility criteria. Single women in other categories are not permitted under the current statutory framework.

All parties must execute the surrogacy agreement before the Appropriate Authority approves the commencement of the surrogacy procedure — obtaining approval without first executing the agreement is grounds for rejection of the application, and commencing the ART procedure without approval is a criminal offence under Section 37 of the Surrogacy (Regulation) Act 2021.

The surrogacy agreement is also required for insurance purposes — the intending couple's obligation to purchase a health insurance policy covering the surrogate for the duration of the surrogacy and for 36 months post-delivery is documented in the agreement. Insurance companies require the surrogacy agreement to issue policies covering surrogacy-related medical risks.

Birth registration after the child is born requires the surrogacy agreement as supporting documentation — together with the Appropriate Authority's approval and any court order obtained — to register the intending couple as the legal parents on the birth certificate and to confirm the child has the correct legal parentage from birth.

An Altruistic Surrogacy Agreement under the Surrogacy (Regulation) Act 2021 and the Surrogacy (Regulation) Rules 2022 must contain specific provisions to be valid, registrable with the Appropriate Authority, and legally operative throughout the surrogacy process.

Party identification names all parties: the intending husband and wife (or widow/divorcee, as applicable) with their full names, ages, addresses, Aadhaar numbers, PAN numbers, and relationship; the surrogate mother with the same identification particulars; and the surrogate's husband (if married) as a consenting party, since his consent is required under the Rules before his wife may act as a surrogate.

Eligibility certifications reference the pre-agreement certifications that must be in place: the Certificate of Essentiality issued by the District Medical Board confirming medical necessity; the Certificate of Eligibility issued by the Appropriate Authority confirming both the intending couple's and the surrogate's eligibility; and the surrogate's medical and psychological fitness certificate from a registered medical practitioner. These certificates must be annexed to the agreement.

Relationship declaration — the agreement must declare the specific close family relationship between the intending couple and the surrogate, as required by the Act's restriction to close relatives. The degree of relationship (e.g., wife's sister, husband's sister-in-law) must be stated with supporting documents if required by the Appropriate Authority.

Altruistic nature declaration — the agreement must expressly state that the arrangement is altruistic, that the surrogate receives no payment or consideration other than the permitted categories of medical expenses and insurance, and that the parties understand that any commercial consideration is a criminal offence under Section 35 of the Act. The surrogate must confirm she is entering the arrangement voluntarily and without financial inducement.

Permitted expenses — the agreement must enumerate all expenses the intending couple will bear: ART clinic fees, IVF procedure costs, prenatal care costs, delivery charges, post-natal care for 6 weeks, travel costs for medical appointments, nutritional supplements during pregnancy, and health insurance premium. The agreement must state that no other payment will be made to the surrogate.

Insurance coverage — the intending couple must purchase a health insurance policy for the surrogate covering the pregnancy and for 36 months post-delivery. The policy details (insurer name, policy number, coverage amount, period) must be specified in the agreement or the agreement must include an obligation to obtain the policy before the ART procedure commences.

Legal parentage declaration — Section 8 of the Act deems the child born through surrogacy to be the biological child of the intending couple for all purposes. The agreement must record the parties' acknowledgement of this statutory provision and the intending couple's acceptance of full parental responsibility from the moment of birth. The surrogate must acknowledge that she has no parental rights over the child.

Registration and approval — the agreement must be submitted to the Appropriate Authority for registration along with the supporting documents. The surrogacy procedure cannot commence until the Appropriate Authority has granted its written approval. The agreement document must reference the approval once obtained, or the parties must execute a supplementary confirmation of the approval date. The forms-legal.com Surrogacy Agreement (Altruistic) — India template covers the mandatory elements under Indian Contract Act, 1872.