Surrogacy abroad: legal pathways and challenges for Indian couples seeking parenthood beyond borders

Poorvi Chothani^*
LawQuest, Mumbai
poorvi@lawquestinternational.com

Introduction

Becoming a parent is a deeply personal journey, often marked by immense hope, emotional resilience, and at times, formidable legal and societal barriers. For many Indian couples, both residents and those living abroad, surrogacy offers a critical pathway to parenthood. However, the legal framework governing surrogacy in India, while designed to prevent exploitation, remains narrowly constructed and exclusionary.

The Surrogacy (Regulation) Act, 2021 specifies that surrogacy is only allowed for married Indian couples who have been married for at least five years and are infertile. It excludes single individuals, LGBTQI+ individuals, and critically, non-resident Indians (NRIs), and overseas citizens of India (OCIs). Additionally, Indian law bans commercial surrogacy, allowing only altruistic surrogacy arrangements where the surrogate is a close relative of the intending couple. As a result, many Indian and NRI couples are compelled to explore surrogacy options outside of India, a path fraught with legal, diplomatic and ethical complexities.

This article explores the multifaceted challenges faced by Indian citizens and NRIs seeking surrogacy abroad, drawing from real-life case studies and comparative legal analysis. The aim is to provide a nuanced, legally grounded understanding of the realities that ‘intended parents’ must encounter in their cross-border journey to parenthood.

Legal framework in India: a narrow gateway

India’s surrogacy laws, codified through the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, impose stringent eligibility criteria:

• Surrogacy is legally permitted exclusively for heterosexual Indian couples who have been married for a minimum of five years and are medically certified as infertile.
• Commercial surrogacy is strictly prohibited. Only altruistic surrogacy is allowed, where the surrogate receives no compensation beyond medical expenses and insurance.
• The surrogate is required to be a close familial relation of the intending couple.
• Single individuals, LGBTQ+ individuals, foreign nationals, NRIs, and OCIs are explicitly excluded.

While designed to safeguard against unethical practices, these restrictions fail to accommodate the diverse realities of Indian families today. Non-Resident Indians (NRIs), despite their strong cultural and familial connections to India and even holding Indian citizenship or being of Indian origin, are frequently excluded from accessing surrogacy in India. As a result, many are left with no choice but to abandon hopes of parenthood or pursue surrogacy in foreign jurisdictions – often at significant financial and legal cost.

Surrogacy abroad: legal complexities for Indian families

As Indian couples and members of the Indian diaspora increasingly turn to surrogacy abroad, they must navigate a complicated web of legal frameworks, both foreign and domestic. These cross-border arrangements raise critical legal questions – particularly around the establishment of parentage, the child’s citizenship status, and the recognition of parental rights. Such uncertainties can significantly influence the outcome of the surrogacy process, often determining not only the ease of bringing a child home, but also the legal security of the family unit.

Altruistic versus commercial surrogacy models

One of the first legal distinctions to understand is between altruistic and commercial surrogacy: India permits only altruistic surrogacy, where the surrogate receives no payment beyond medical costs; countries such as Georgia, Ukraine and the United States allow commercial arrangements, in which surrogates receive compensation beyond medical and pregnancy-related expenses.

Choosing a jurisdiction with laws that align with the intending parents’ expectations and ethical values is crucial ensuring to a smooth surrogacy experience.

Establishing legal parentage abroad

The way legal parentage is recognised varies widely from one jurisdiction to another. In some places, such as certain US states, intended parents can get a court order before the child is born, officially naming them as the legal parents. In other countries, this legal recognition only occurs after the birth and may require court proceedings or depend on the terms of the surrogacy contract. The timing and legal process for being recognised as the child’s parents can directly affect how quickly the child can obtain Indian citizenship and travel documents to come home.

Citizenship by descent and Indian law

Under Section 4 of the Indian Citizenship Act, 1955, a child born outside India to an Indian citizen may be eligible for citizenship by descent. However, this recognition hinges on whether the Indian legal system, and the consular authorities, acknowledge the parent(s) commissioning the surrogacy as the child’s lawful parents. In cases involving surrogacy, legal recognition of parentage is not automatically granted. Documentation such as surrogacy agreements and parentage orders become vital in substantiating claims of citizenship and initiating the application process for an Indian passport.

Importance of surrogacy contracts

Well-drafted surrogacy contracts are not just procedural formalities; they are foundational legal instruments. They establish the terms of the surrogacy arrangement, secure the rights and responsibilities of all parties, and often serve as key documentation for legal parentage claims. In the context of Indian citizenship applications, these contracts are frequently scrutinised by Indian consulates and embassies as part of the verification process.

In practice, the interaction between India’s domestic surrogacy laws and foreign legal frameworks can leave intending parents caught between systems. Given that Indian law largely excludes cross-border surrogacy and international legal standards differ significantly, many families are left in a state of legal uncertainty – grappling with complex bureaucratic processes and conflicting legal frameworks to establish their parental rights.

A clearer, more inclusive policy approach, both in India and in diplomatic practice, would go a long way in addressing the uncertainties faced by Indian-origin families seeking surrogacy abroad.

Global surrogacy destinations to which Indian couples turn

This section analyses publicly available information for some of the countries which individuals consider when choosing a jurisdiction to have a child through surrogacy. This is not legal advice but general information. For specific situations, individuals must procure advice from competent local legal counsel to ensure they can meet their goals regarding the local legalities and citizenship for their child.

Georgia: a clear legal framework with consular support

Georgia has steadily climbed the ranks to become a favoured destination for Indian and NRI couples seeking surrogacy. The country offers a legal framework that is both well-defined and supportive of intended parents. Commercial surrogacy is legal. Parentage is established through a court order or contract, with the intended/commissioning parents’ names clearly identified on the birth certificate. Indian diplomatic cooperation is a major plus: the Indian Embassy in Tbilisi is notably pragmatic, often prioritising documentation over prolonged DNA verification processes.

Case insight

An NRI couple (Indian citizens) based in the United Kingdom recently obtained Indian citizenship for their surrogate-born child in Georgia with minimal bureaucratic friction. The combination of legal certainty and consular efficiency played a key role in easing what is often an emotionally and administratively taxing journey.

Albania: legal clarity with a genetic prerequisite

Albania offers a legally stable option for Indian couples seeking surrogacy, but it comes with a key condition that at least one of the intended parents must have a genetic connection to the child. Commercial surrogacy is permitted under national law. Indian consulates generally accept surrogacy agreements as valid documentation for processing the child’s citizenship application, provided all the supporting paperwork is in order. For couples who meet the genetic requirement, Albania seems to offer a predictable path, supported by a growing number of local agencies familiar with Indian legal and procedural expectations.

Cyprus: a viable but bureaucratically challenging option

Cyprus stands out as a country that legally permits surrogacy but places specific conditions on eligibility, creating a mixed picture for Indian couples. Surrogacy is only permitted if one intended parent provides genetic material. DNA testing is commonly required, even when the arrangement is clearly documented. The Indian Embassy has indicated that the Indian citizenship processes may be delayed due to procedural and regulatory hurdles.

United Kingdom: regulated but restrictive

The UK provides one of the most legally regulated environments for surrogacy in the world, but its model is not easily accessible to most NRIs. Only altruistic surrogacy is permitted, meaning the surrogate may only be reimbursed for reasonable medical and related expenses, with no additional financial compensation allowed. Legal parentage is not automatic; it must be transferred post-birth through a parental order, which typically takes several months. NRIs who do not have legal residence status in the UK face significant legal and logistical hurdles. While ideal in principle, the UK’s surrogacy framework is often out of reach for the very NRIs who live there, due to its rigid eligibility criteria and slow legal processes.

Other European jurisdictions: high legal standards, higher costs

European jurisdictions have something of a legal patchwork when it comes to surrogacy. Countries such as the Netherlands and Germany prohibit commercial surrogacy. Greece or Ukraine (before the war) on the other hand, were more permissive but have growing regulatory uncertainty or geopolitical instability.

Certain US states: high legal standards, higher costs

Select US states such as California are globally recognised for their surrogacy-friendly laws and enforceable contracts. Parentage is established pre-birth, and surrogacy agreements are backed by the courts. However, costs are exceptionally high, often making this option unviable for middle-income Indian families.

Citizenship challenges and diplomatic hurdles in cross-border surrogacy

Even when a surrogacy arrangement succeeds abroad, acquiring Indian citizenship for the child is not automatic. Requirements include:

• the need to provide evidence to show that at least one of the parents held Indian citizenship at the time of the child’s birth and continues to do so when seeking immigration benefits;
• submission of surrogacy agreements, medical records, and birth certificates;
• in some instances, it is necessary to provide DNA test results to the Indian consular post to establish genetic parentage.

Legal and procedural challenges faced by NRIs during cross-border surrogacy

NRIs encounter unique challenges that are not typically faced by individuals residing within India:

• Exclusion from Indian surrogacy laws – NRIs cannot access altruistic surrogacy within India, despite holding Indian citizenship.
• Embassy discrepancies – lack of standardised procedures across Indian missions leads to inconsistent handling of surrogacy-related citizenship applications.
• Conflict of laws – some countries in which NRIs reside (eg, Germany, France) criminalise or do not legally recognise surrogacy, leaving parents in complicated cross-border legal battles.
• Cost and accessibility – many NRI families are financially stretched by the high costs of overseas surrogacy, legal fees and documentation requirements.

Ethical dilemmas and legal complexities in international surrogacy

The global surrogacy landscape continues to raise pressing ethical and legal questions. These include:

• Exploitation versus empowerment – does commercial surrogacy exploit economically vulnerable women, or does it provide a legitimate livelihood?
• Statelessness – delays or failures in legal parentage recognition can leave children without any nationality.
• Inconsistent legal recognition – differing laws on surrogacy and parentage often result in non-recognition of parental rights across borders.
• Absence of a global framework – with no international treaty regulating surrogacy, families remain vulnerable to local policy shifts and diplomatic discretion.

Recent developments

India

The Surrogacy (Regulation) Act, 2021 has sparked significant advocacy for expanding eligibility criteria, particularly to include single individuals and LGBTQI+ couples. However, despite these calls for reform, no legislative amendments have been enacted to date. The Act currently allows only altruistic surrogacy and limits eligibility to married heterosexual couples, along with specific groups of women, including widows and divorcees aged between 35 and 45.^[1] This exclusion has been challenged in India’s Supreme Court, with petitions arguing that it infringes upon reproductive rights and the right to privacy guaranteed under Article 21 of the Indian Constitution.^[2]

Critics argue that the Act’s narrow definitions of ‘intending couple’ and ‘intending woman’ are discriminatory, excluding single men, unmarried women, and LGBTQI+ individuals from accessing surrogacy services. Legal scholars and activists have highlighted that such exclusions fail to reflect the diversity of modern family structures and may perpetuate inequality.^[3] Despite ongoing debates and legal challenges, the Act remains unchanged, and the Supreme Court’s deliberations on these matters are awaited.

Georgia

Georgia has been a favourable jurisdiction for Indian nationals seeking surrogacy arrangements. The country’s legal framework has traditionally supported international surrogacy, and embassies have facilitated the process efficiently. However, recent developments indicate that Georgia has banned international commercial surrogacy, aligning with global concerns about exploitation and human trafficking.^[4]

The EU/UK

In the EU and UK, there is an ongoing dialogue about the ethical implications of international surrogacy and the rights of children born through such arrangements. The Nuffield Council on Bioethics has highlighted the need for law reform to address ethical, legal, and practical issues in surrogacy, emphasising the importance of safeguarding all parties involved.^[5]

Additionally, the UK government offers guidance on surrogacy regulations, clarifying that surrogacy agreements are not legally binding in the UK. Intended parents are required to apply for a parental order to obtain legal parenthood of a child born via surrogacy.^[6]

Conclusion

For numerous Indian citizens and NRIs, pursuing surrogacy abroad is not simply a choice but frequently the sole feasible path to parenthood. But without supportive legal and diplomatic frameworks, this path remains uncertain, emotionally taxing, and financially draining.

Surrogacy abroad can be a lifeline, but only if backed by laws and institutions that reflect the realities of modern Indian families. It is time for reform that combines compassion with legal clarity, ensuring that no parent, or child, is left without support, recognition, or identity.