India’s first In-Vitro Fertilization (IVF) baby, and World’s second, Kanupriya, was born in Kolkata on October 3, 1978. The scientific technology behind IVF is known as Assisted Reproductive Technology (ART). Despite India being a hub of surrogacy, there is no legal framework.

There are four types of surrogacy: traditional, gestational, commercial and altruistic. Commercial surrogacy must face many ethical questions. Supreme Court in Baby Manji Yamada, (2008) 13 SCC 518 did not venture on legality of commercial surrogacy; Law Commission Report No. 228 in 2009: altruistic surrogacy be legalized, and commercial surrogacy be prohibited; Parliamentary Standing Committee on Health and Family Welfare’s Report on Surrogacy (Regulation) Bill, 2016 in 2017: reproductive labour for free is grossly unfair and arbitrary / only altruistic surrogacy is exploitation / private contract model is inadequate / fix quantum of compensation to surrogate mothers.

Regulation of market for commercial surrogacy is necessary; no blanket ban. Two cases before Supreme Court: Jayashree Wad, Writ Petition (Civil) No. 95 of 2015 and Jan Balaz, Civil Appeal No. 8714 of 2010.

The future awaits.

Jaideep Gupta, Surrogacy: Towards a Legal Structure for India, The Indian Advocate, Vol XLII: Women and The Law, 2018.

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We must clarify, we are not questioning wisdom of Parliament in its prescription of age-limits under The Surrogacy (Regulation) Act, 2021 which came into force with effect from 25.01.2022. The cases before us are limited to couples who commenced their surrogacy process before enforcement of Surrogacy (Regulation) Act.

It useful to note, law does not impose any age restrictions on couples who wish to conceive and bear children naturally. There is no age bar for couples who wish to adopt children under provisions of The Hindu Adoptions and Maintenance Act, 1956.

The age restriction under Section 4(iii)(c)(I) of Surrogacy (Regulation) Act would not apply if an intending couple had commenced the surrogacy procedure prior to 25.01.2022 and were at stage of creation of embryos and freezing after extraction of gametes and on the threshold of transfer of embryos to the uterus of the surrogate mother.

– Hon’ble Justice B.V. Nagarathna, Vijay Kumari v. Union of India, [Writ Petition (Civil) No. 331 of 2024] decided on 09.10.2025.