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

Parenthood is a profoundly personal journey, shaped by hope and resilience, but also by legal and societal barriers that affect some individuals. For many Indian couples, including those living abroad, surrogacy is a vital and sometimes the only route to having a child. However, India’s surrogacy laws, while aimed at preventing exploitation, remain restrictive. Indian nationals residing in India have limited options to avail of altruistic surrogacy in India, but Non-Resident Indians (NRIs) and Overseas Citizens of India (OCIs) are compelled to explore surrogacy options in other countries - an endeavour riddled with legal, diplomatic, and ethical complexities. Further, Indian nationals who do not qualify for surrogacy in India also choose other countries that support commercial surrogacy.

This article examines the legal complexities of surrogacy abroad, utilizing case studies and cross-border legal frameworks for context.

India’s legal framework: Narrow and exclusionary

The legal landscape of surrogacy in India is primarily shaped by the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021. Key features include:

• Permits surrogacy only for heterosexual married couples who have been in the marriage for a minimum of five years and can provide medical evidence of infertility.
• Prohibits commercial surrogacy; only altruistic surrogacy is allowed, and the surrogate must be a close family member of the intending couple.
• Single individuals, LGBTQ+ persons, foreign nationals, NRIs, and OCIs are excluded.

While well-intentioned, these laws fail to reflect the diverse realities of Indian families today. NRIs, even if they hold Indian citizenship, cannot pursue surrogacy in India, leading many to seek options abroad despite steep legal and financial challenges.

Despite public and legal advocacy, the Surrogacy (Regulation) Act, 2021 remains unchanged. Petitions challenging its constitutionality are pending before the Supreme Court, including those filed by LGBTQ+ rights groups, single individuals, and NRI advocacy organisations seeking broader eligibility and less restrictive definitions of family.

Ethical debates continue in the UK and EU. Bodies like the Nuffield Council on Bioethics have recommended legal reforms, while UK parental orders remain mandatory post-birth.

Legal complexities abroad

Surrogacy laws vary widely by country. Some, like Canada and the UK, permit only altruistic arrangements, while others, like certain US states, Mexico, and pre-war Ukraine, allow commercial surrogacy through enforceable contracts. Key legal hurdles include:

• Establishing parentage: In California, for example, court orders before birth assign parentage to intended parents. In many other countries, this is only possible after birth.
• Indian Citizenship: Under Section 4 of the Citizenship Act, 1955, a child born abroad to an Indian citizen may acquire citizenship by descent, but only if Indian authorities recognize the intended parents’ legal status. This recognition often hinges on surrogacy agreements, court orders, birth certificates, and DNA evidence.

Challenges at Indian missions

Even with complete documentation, Indian missions abroad differ drastically in their approach. While Consulates in Georgia and the U.S. tend to be pragmatic, others demand excessive paperwork or DNA proof, leading to delays or statelessness. In the absence of standardized consular procedures, families may encounter arbitrary and inconsistent demands that delay exit formalities and citizenship issuance.

Some destinations that Indian families opt for

1. United States

• California: Highly regarded for international surrogacy, permits compensated agreements, no residency or citizenship requirement, and issues pre-birth parentage orders. Courts are experienced and supportive.
• Illinois: Allows both gestational and traditional surrogacy with parent-friendly laws ensuring enforceable contracts.
• Nevada: Offers inclusive surrogacy laws with efficient court orders for intended parents, including foreigners.
• Connecticut: Provides pre-birth parentage orders and recognizes intended parents regardless of marital status.
• New Jersey: Allows compensated surrogacy with pre-birth parentage orders; no residency or citizenship requirement.
• Colorado: Progressive surrogacy law that is inclusive of foreign nationals and diverse family structures. Pre-birth orders are routinely granted.
• Washington (State): Permits compensated gestational surrogacy with enforceable contracts and supportive court processes.
• Delaware & New Hampshire: Offer strong legal protections with court-backed parentage recognition; available to foreign nationals.
• Maine & Vermont: Progressive jurisdictions with reliable procedures for establishing parentage, though less commonly used by Indian families.

2. Mexico

Legal nationally since 2021, including for foreigners, LGBTQ+ couples, and single parents. However, implementation varies by state and often requires navigating court petitions or regional inconsistencies.

3. Canada & UK

Only altruistic surrogacy is permitted. Legal parentage typically involves court processes and can be prolonged. Compensation beyond reasonable expenses is prohibited.

4. Georgia

Previously, it offered affordable commercial surrogacy with transparent legal processes and cooperative Indian consular support, making citizenship and exit formalities smoother for Indian families. However, changes in the law have been passed, though they have not yet been implemented. Hence, it is unclear how the government would treat new cases.

5. Greece

Permits altruistic surrogacy for heterosexual married or cohabiting couples with prior court approval. The process is judicially supervised, and intended parents are legally recognized before the birth of the child. While commercial surrogacy is not allowed, reimbursement of expenses is permitted. Indian authorities generally cooperate when documentation is complete and verified as compliant with local laws.

6. Cyprus & Albania

Permit surrogacy under conditions such as a required genetic link between the child and at least one intended parent. Indian authorities may mandate DNA testing as part of the exit process.

7. Colombia

Inclusive laws for LGBTQ+ and single parents. This jurisdiction is gaining popularity despite legal ambiguity.

8. Kenya

Once popular for low-cost surrogacy, it is now generally discouraged due to minimal legal safeguards. Indian missions often advise against applications from children born through surrogacy in Kenya, citing concerns around trafficking and unreliable documentation.

Germany and France ban or criminalize surrogacy, making legal recognition difficult.

Legal and diplomatic challenges for NRIs

NRIs or Non-Resident Indians refers to Indians who reside outside India. Foreign nationals who are registered as Overseas Citizens of India (OCIs) are treated on par with NRIs under most Indian regulations:

• Exclusion from India: Excludes NRIs from accessing surrogacy services within the country.
• Inconsistencies among Indian Consular Posts: Lack of clear consular guidelines results in unequal treatment.
• Conflicting laws: Some countries ban or criminalize surrogacy, making legal recognition difficult even for families that lawfully reside in these countries.
• Financial burden: The cost of international surrogacy, legal representation, and documentation can be overwhelming.

For many Indian families, surrogacy abroad is not a luxury but a necessity. Yet without consistent legal and diplomatic support, this journey remains fraught with risk, emotional distress, and financial strain.

The United States continues to be one of the most reliable destinations, especially in states like California, Illinois, Nevada, Connecticut, New Jersey, and Colorado, which offer strong legal protections, enforceable contracts, pre-birth parentage orders, and cooperative consular processes. These jurisdictions provide smoother pathways for establishing legal parentage and securing Indian citizenship for the child, particularly when genetic linkage is clearly documented.

Other countries such as Greece, Mexico, and Georgia (prior to recent legal changes) have also been attractive options due to relatively predictable legal frameworks and, in some cases, greater affordability or consular cooperation.

Until India moves towards a more inclusive and practical framework, one that acknowledges evolving definitions of family, protects the rights of all parties involved, and guarantees every child’s right to identity and belonging—Indian families will continue to look beyond borders. Parenthood is a universal aspiration, one that should be enabled, not obstructed, by laws or bureaucracy.

(Co-authored by Anila K. Sabu, Immigration Executive at LawQuest)


(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com)