Surrogacy Act for CLAT: Who Can Opt, Who Can Carry

📑 On this page

⚡ The short answer

India allows only altruistic surrogacy: the surrogate gets her medical costs, prescribed expenses and insurance, never a fee. Only a married Indian man and woman (wife 23–50, husband 26–55) with a medical need and no surviving child, or a widow or divorcee aged 35–45, can opt. The surrogate must be 25–35, once married, a mother and a first-timer.

🎬 The 30-second story

Zoya reads the fine print

“The doctor says I can't safely carry a pregnancy.”

🏥

Zoya

Zoya, 34, married three years to Aarav.

“Easy. Kabir's clinic has a surrogate ready. Eight lakh, all in.”

💸

Aarav

Aarav has found a “package”.

“Her fee, a little flat for her family. Sign here.”

📝

Kabir

The clinic owner smells business.

“Paying her? Isn't that exactly what the law bans?”

🛑

Zoya

Zoya hasn't signed yet.

Tara's ruling: Zoya is right. A fee, or a flat for the surrogate's family, is commercial surrogacy, a crime. They can still proceed with a willing woman aged 25–35, once married, with her own child and no earlier surrogacy, covering only her medical costs, prescribed expenses and insurance.

What is surrogacy, and which kind does India allow?

Surrogacy is when one woman carries and delivers a baby for others, planning to hand the child over at birth. Indian law allows it only when it is altruistic (no profit for the surrogate) and gestational (a lab-made embryo; the surrogate's own egg is never used).

Why so strict? India was once a global hub for paid surrogacy, where clinics recruited poor women and some babies were left in legal limbo. Parliament chose a narrow door: a medical last resort, not a service on sale.

📌 What CLAT actually expects

The passage gives you the rules. Test the facts against every condition and find the one that fails. One failure means no surrogacy, however sympathetic the couple.

🧮 The formula

Lawful surrogacy, piece by piece

🩺

Medical need

💍

Eligible intending parent(s)

🤰

Eligible surrogate

🤝

No profit

⚖️

Lawful surrogacy

Altruistic or commercial: where is the line?

Ask one question: does anyone profit? The surrogate may receive only her medical expenses, other prescribed expenses and insurance. A fee, reward or gift, in cash or kind, to her or her family, is commercial. So is trading in embryos or eggs.

⚔️ Side by side

Altruistic vs commercial surrogacy

🤲Altruistic

Help, not a job

•Her medical bills are paid
•Insurance for her, covering complications after delivery
•Only extra expenses the rules list

🚫Commercial

Pregnancy as a paid service

•A fee, reward or “thank-you” gift
•Money or benefits to her husband or children
•Trading in embryos or eggs

Test	Altruistic	Commercial
Legal status	Allowed, with certificates	A criminal offence
A contract for a fee	Not needed	Unenforceable

Ask: did she get anything beyond costs and insurance?

🎚️ The scale

What can the surrogate receive?

← Clearly allowedClearly banned →

Medical bills

e.g. the hospital bill for her caesarean

Insurance

e.g. a 36-month policy in her name

Prescribed expenses

e.g. only what the rules list

Benefit in kind

e.g. a scooter for her husband

Fee per child

e.g. ₹2 lakh on delivery

⚠️ Passage law beats real law

A fee contract is doubly dead: surrogacy law bans the payment, and contract law won't enforce a forbidden object. Note too that CLAT 2023's passage dated the Contract Act “1972” and demanded two witnesses. Wrong in real life; apply it anyway.

Who can opt for surrogacy in India?

Two kinds of people qualify. An intending couple: a legally married Indian man and woman with a certified medical need. Or an intending woman: an Indian widow or divorcee aged 35–45. Single men, never-married women, live-in and same-sex partners, and foreigners are outside both doors.

🧭 Decision flow

Who can opt for surrogacy?

❓ Are they a legally married Indian man and woman?

Yes →

❓ Wife 23–50 and husband 26–55 on the day of certification?

No →

Not eligible: age bar

Unless they froze embryos before the Act began (2025 ruling).

Yes ↓

❓ Does a medical board certify a need for gestational surrogacy?

No →

Not eligible: no medical need

Yes ↓

❓ Do they have a surviving child: biological, adopted or by surrogacy?

No →

Eligible intending couple

Yes ↓

❓ Is that child disabled, or suffering a life-threatening or fatal illness?

Yes →

Eligible: the exception applies

With a medical certificate and the authority's approval.

No →

Not eligible: they already have a child

No →

❓ Is she an Indian widow or divorcee aged 35–45?

Yes →

Can opt as an intending woman

Still needs a medical certificate and an eligible surrogate.

No →

Not eligible

Single men, never-married women, unmarried or same-sex partners, foreigners.

The no-child rule and its one exception

Surrogacy is for people with no surviving child; an adopted or earlier surrogate child counts. The exception: an existing child who is mentally or physically challenged, or has a life-threatening or fatal illness. CLAT 2023 Q93 used it: a couple whose adopted daughter had a degenerative illness was eligible.

Who	Age window	Tested on
Wife (intending couple)	23–50	Day of certification
Husband (intending couple)	26–55	Day of certification
Intending woman (widow or divorcee)	35–45	When she seeks surrogacy
Surrogate mother	25–35	Day of implantation

→ scroll to see more

Who can be a surrogate mother?

🧩 At a glance

Six boxes she must tick

💍Ever married

Married now or before: a widow or divorcee qualifies.

👶A child of her own

She knows what pregnancy involves.

🎂Aged 25–35

On the day of implantation.

1️⃣Only once in her life

A second surrogacy is barred.

🧬Never her own egg

Gestational only: the child isn't genetically hers.

🩺Fit and willing

Medically and mentally fit; written consent.

The intending parents bring a willing woman to the authority, which certifies her separately. She can withdraw consent until the embryo is implanted, and no one may force her into an abortion.

⚠️ “Close relative” and “married five years”

The 2019 Bill wanted a close relative as surrogate and couples married five years. The 2021 Act dropped both for a willing woman. CLAT 2023's passage used the old rules: apply them when a passage states them, never otherwise.

What protects the baby and the surrogate?

🕒 Timeline

From medical need to birth

🩺
Step 1

Medical indication

A district medical board certifies the need.
📋
Step 2

Two eligibility certificates

One for the intending parents, one for the surrogate.
⚖️
Step 3

Parentage order

A magistrate fixes parentage and custody before the pregnancy.
🛡️
Step 4

Insurance

36 months' cover for the surrogate.
✍️
Step 5

Consent, then implantation

She may walk away until this point.
👶
Step 6

Birth

The child is the intending parents' in law.

🔗 Who owes whom

Three parties, three duties

Intending couple → Surrogate mother: costs + insurance only — never a fee
Surrogate mother → Child: carries, hands over
Intending couple → Child: cannot abandon — not for disability or sex

The child is deemed the intending parents' biological child, with every right of a natural-born child. They cannot abandon the baby for any reason: disability, sex, or the couple splitting up before birth, which is what happened in the case that pushed India to regulate.

Is the law fair, and does the age bar bite if you had already started?

Critics say the door is too narrow: parenthood is part of personal liberty, and excluding people by marital status, sexual orientation, nationality or age fails equality. Supporters cite the surrogate's safety and the child's welfare. In 2025 the Supreme Court refused to apply the age limits to couples who had frozen embryos before the Act began, but left the limits' validity undecided.

Which cases shaped surrogacy law?

🍼

Landmark case · 2008 · Supreme Court

Baby Manji Yamada v Union of India

📋

What happened

A Japanese couple commissioned a surrogate in Gujarat. Their marriage broke down before the birth, the father's visa expired, and the grandmother came for the baby. An NGO filed habeas corpus.

❓

The question

Who decides a surrogate baby's custody when no law exists?

🔨

What the court held

It sent grievances to the national child-rights commission and told the Centre to decide the baby's travel papers quickly.

What CLAT takes from it: With no law, a newborn was stranded between parents and countries. The Act now fixes parentage before birth.

❄️

Landmark case · 2025 · Supreme Court (2 judges)

Arun Muthuvel v Union of India (with Vijaya Kumari S)

📋

What happened

Couples froze embryos before the Act began in January 2022. By certification they were over the new age limits (one husband was 62).

❓

The question

Does the age bar apply to couples who had already begun?

🔨

What the court held

No. Freezing embryos crystallised their intention; applying the bar now would be retrospective and defeat their Article 21 right to parenthood.

What CLAT takes from it: When a new rule meets a process under way, ask how far it had gone on the day the rule began.

How has CLAT asked it?

CLAT 2023 set five questions on the Act; two are solved below. The others: Q92 (the “only once” rule), Q93 (the illness exception) and Q95 (an equality challenge).

📝 Asked in CLAT 2023 · Q91 Intending couple

The SRA restricts altruistic surrogacy to legally wedded infertile Indian couples. The couple is deemed eligible for surrogacy only if they have been married for five years. … A husband must be between 26 and 55 years of age and a wife between 23 and 50 years. Further, Indian couples with biological or adopted children are prohibited from undertaking surrogacy, save for some exceptions such as mentally or physically challenged children, or those suffering from a life-threatening disorder or fatal illness. … commercial surrogacy is banned in India … The surrogate woman cannot be given payments, rewards, benefits or fees, “except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”. … The Indian Contract Act, 1972 (the “ICA”) provides that a valid contract has to be in writing, and signed in the presence of two witnesses. The ICA also provides that a contract that is prohibited by any other law will not be valid under the ICA.

Rani and Shiva have been married for 6 years. Rani is aged 51 and Shiva is aged 53. Busy building businesses, they had not thought about children; now they want a child via surrogacy. Are Rani and Shiva eligible for surrogacy under the SRA?

AYes, because they have been married for more than 5 years.

BYes, because they have financial capacity to bring up a child.

CNo, because they do not fall within the legal requirements of intending parents.

DNo, because they are not an infertile couple.

Reveal answer + reasoning

Answer: C

Tick the boxes. Married six years: passes. Shiva, 53: inside 26–55. Rani, 51: outside 23–50. One failure sinks the claim.

Why the others fail

A — Marriage length is one condition of several.
B — Wealth is not a condition at all.
D — The facts never say they are fertile, only that they hadn't tried. The age bar is the proven failure.

📝 Asked in CLAT 2023 · Q94 Commercial surrogacy

Same passage as above.

(Facts trimmed) Queen's clinic employs 54 married women, mostly poor, who become surrogates for income. Kishore and Noor (married 5 years, both 35, childless; Kishore certified infertile) sign a written contract with a surrogate before two witnesses: ₹2 lakh per child plus medical needs and insurance. A baby is born. They pay the medical costs but not the ₹2 lakh. The surrogate sues. Will she succeed?

AYes, because Kishore and Noor are bound by the contract under the ICA.

BYes, because the intending parents and the surrogate meet the eligibility requirements under the SRA.

CYes, because the surrogate meets the eligibility requirements under the SRA.

DNo, because SRA allows only altruistic surrogacy, so the contract is not valid under the ICA.

Reveal answer + reasoning

Answer: D

Chain two rules. A ₹2 lakh fee goes beyond medical expenses and insurance, so it is commercial. The passage's ICA voids contracts prohibited by another law. Writing and witnesses can't rescue a forbidden object.

Why the others fail

A — Formalities don't cure a prohibited object.
B — Eligibility permits altruistic surrogacy, never a fee.
C — Same flaw: eligibility doesn't make payment lawful.

💥 Myth vs fact

Traps students fall for

🙅 Myth

Surrogacy is banned in India.

Tap to bust it →

✅ Fact

Only commercial surrogacy is banned. Altruistic surrogacy is allowed with certificates.

🙅 Myth

The surrogate can't receive a single rupee.

Tap to bust it →

✅ Fact

She gets medical costs, prescribed expenses and insurance. Never profit.

🙅 Myth

The surrogate must be a relative.

Tap to bust it →

✅ Fact

That was the 2019 Bill. The Act asks for a willing woman; follow the passage if it differs.

🎯 Quick quiz

Five fact patterns

0 / 5

Rule: the wife must be 23–50 and the husband 26–55 on the day of certification. Nisha is 50 when certified; on implantation day she is 51.

Q1. Are they eligible?

Rule: a surrogate must be ever married, have her own child, be 25–35 at implantation and never have been a surrogate. Lata, 31, is divorced with a son and has never been a surrogate.

Q2. Can Lata be a surrogate?

Rule: the surrogate may receive only medical expenses, prescribed expenses and insurance; any other benefit, in cash or kind, to her or her dependants is commercial. A grateful couple gifts her husband a scooter.

Q3. Is this lawful?

Rule: an intending woman is an Indian widow or divorcee aged 35–45. Farah, 40, never married, has a certified medical need.

Q4. Can Farah opt for surrogacy?

Rule: the child is deemed the intending couple's biological child, and they may not abandon the child for any reason. The baby has a heart defect; the couple tells the hospital to return her to the surrogate.

Q5. What is the legal position?

🎯 In a nutshell

Only altruistic, gestational surrogacy: costs, prescribed expenses, insurance; never a fee.
Couple: married Indian man and woman, wife 23–50, husband 26–55, medical need, no surviving child (illness exception).
Intending woman: Indian widow or divorcee, 35–45.
Surrogate: willing, ever married, a mother, 25–35, once only, never her own egg.
The child is the intending parents' and can't be abandoned. The passage's rules win.

📎 Good to know, not to memorise

Surrogacy (Regulation) Act 2021, in force 25 January 2022: s.2 definitions; s.4 eligibility; s.7 no abandonment; s.8 deemed biological child. Commercial surrogacy: up to 10 years and ₹10 lakh fine.
Surrogacy Rules 2022 (amended 2023, 2024 on donor gametes); companion ART (Regulation) Act 2021.
Baby Manji Yamada (2008) 13 SCC 518; Arun Muthuvel / Vijaya Kumari S, 2025 INSC 1209; Law Commission 228th Report (2009).
Indian Contract Act 1872, s.23: an agreement with an object forbidden by law is void.

Ready for a full passage?

Timed drills built like the CLAT 2023 surrogacy set.

Start the drill

Frequently asked questions

Is surrogacy legal in India?

Yes, but only altruistic surrogacy. The surrogate may receive her medical expenses, prescribed expenses and insurance, nothing more. A fee or any benefit to her family is commercial surrogacy, a criminal offence. The intending parents also need a certified medical need and eligibility certificates.

Can a single woman or man opt for surrogacy in India?

Only an Indian widow or divorcee aged 35 to 45. Never-married women and all single men are excluded. Critics say this breaches equality and personal liberty, and challenges have reached the Supreme Court, but in CLAT you apply the passage's rule.

Can a couple who already have a child opt for surrogacy?

Generally no. Any surviving child, biological, adopted or by surrogacy, bars them. The exception is a child who is mentally or physically challenged or has a life-threatening or fatal illness, certified by a medical board. CLAT 2023 tested exactly this.

Can the surrogate change her mind and keep the baby?

She can withdraw consent any time before the embryo is implanted. After that, the law treats the child as the intending parents' biological child, under a magistrate's parentage order made before the pregnancy. The embryo is never from her egg, so she has no genetic link either.

Do I need to memorise the age limits for CLAT?

No. CLAT 2023 printed every age limit in the passage. You need the habit of checking each fact against each condition, noticing which date an age is measured on, and remembering that one failed condition defeats eligibility.