Yes, a surrogacy consultancy business can operate legally in India, but only within a very limited advisory role. Commercial surrogacy, paid surrogate matching, brokerage and advertisements seeking surrogate mothers are prohibited.
A lawful consultancy may provide general information, documentation support and coordination with qualified lawyers or registered clinics. It cannot operate like an agency that finds women for surrogacy, negotiates payments or earns commission from surrogacy arrangements.
Legal Status of Surrogacy in India
Surrogacy is primarily regulated by the Surrogacy (Regulation) Act, 2021, which became effective on January 25, 2022. The Surrogacy Rules, 2022 and subsequent regulations provide additional procedural requirements.
Indian law permits only eligible altruistic surrogacy. Under this arrangement, the surrogate mother cannot receive a commercial payment or reward. Only permitted medical expenses, prescribed insurance coverage and other legally allowed expenses may be provided.
Commercial surrogacy is completely prohibited.
What Can a Surrogacy Consultant Legally Do?
A consultancy may provide limited, lawful support such as:
- Explaining the general surrogacy process
- Providing a neutral list of registered surrogacy clinics
- Helping clients understand required certificates and documents
- Coordinating appointments with authorised clinics
- Referring clients to independent advocates
- Assisting with administrative applications
- Arranging counselling through qualified professionals
- Explaining insurance and record requirements
- Helping with lawful post-birth documentation
A consultant should clearly state that final eligibility decisions are made by the appropriate government authority and medical procedures are conducted only by registered clinics.
Legal advice should be given by a qualified advocate, while medical advice and counselling should be provided by appropriately qualified professionals.
Commercial Surrogacy and Brokerage Are Illegal
Section 38 of the Surrogacy Act prohibits individuals, organisations, clinics and establishments from undertaking or providing commercial surrogacy or its related services.
The law specifically prohibits organised groups, brokers and intermediaries from arranging surrogate mothers. Therefore, a consultancy cannot:
- Maintain a database of women available as surrogates
- Introduce couples to surrogate mothers for payment
- Negotiate compensation with a surrogate
- Receive a commission for completing a match
- Collect money on behalf of the surrogate
- Guarantee the availability of a surrogate mother
- Arrange a commercial surrogacy package
- send Indian clients abroad to bypass Indian law
- Bring foreign clients to India for prohibited surrogacy
Calling the payment a “consultancy fee,” “coordination charge” or “service package” will not make an illegal arrangement lawful if its real purpose is commercial surrogate matching.
Advertising Restrictions
The law places strict restrictions on surrogacy advertisements. A person cannot publish or circulate advertisements that seek women willing to become surrogate mothers or encourage women to offer surrogacy services.
Advertisements such as “surrogate mothers available,” “earn money through surrogacy,” “guaranteed surrogate arrangement” or “complete commercial surrogacy package” would create serious legal risk.
A consultancy may cautiously advertise genuine legal or administrative guidance. However, the advertisement must not imply that it can supply, arrange or select a surrogate mother.
Work Only with Registered Clinics
Surrogacy procedures can be performed only at clinics registered under the Surrogacy Act. Registration applications and details of registered facilities are maintained through the National ART and Surrogacy Registry.
Before referring a client, the consultancy should independently verify the clinic’s current registration status. An attractive website, company registration or IVF experience does not prove that a clinic is authorised to conduct surrogacy procedures.
A consultant must never recommend an unregistered doctor, private nursing home, apartment-based facility or overseas arrangement intended to avoid Indian restrictions.
Eligibility and Required Approvals
A consultant cannot promise that every interested person will qualify for surrogacy. The intending couple or intending woman must satisfy the eligibility conditions prescribed by law.
The process ordinarily requires certificates of eligibility and essentiality from the appropriate authority. Medical justification, age, citizenship, marital status, existing children and other statutory conditions may be examined.
The surrogate mother must also fulfil the prescribed eligibility requirements, provide written informed consent and receive the required insurance protection. Her consent cannot be obtained through pressure, deception or financial inducement.
Business Registration and Contracts
A consultancy may be registered as a proprietorship, partnership, LLP or company. Depending on its location and turnover, it may also need GST registration, Shops and Establishments registration and local trade permission.
However, ordinary business registration does not authorise surrogate matching.
The service agreement should clearly state that the consultancy:
- Does not provide medical or legal advice unless professionally authorised
- Does not maintain or supply a list of surrogate mothers
- Does not guarantee approval or pregnancy
- Does not accept money for a surrogate
- Works only with registered clinics and qualified professionals
- Protects clients’ medical and personal information
Confidentiality and Ethical Duties
Surrogacy involves highly private medical, reproductive and family information. Records should be collected only when necessary and stored securely. Employees must not share client details, reports, photographs or pregnancy information without lawful authority and consent.
Testimonials and success stories should not reveal the identity of the intending parents, surrogate mother or child without proper permission.
When Can the Consultancy Become Illegal?
The business may become illegal when it:
- Arranges surrogate mothers for payment
- Promotes commercial surrogacy
- Publishes advertisements seeking surrogates
- Works with unregistered clinics
- Creates false medical or eligibility documents
- Pays commissions to agents for finding women
- Exploits or pressures a surrogate mother
- Falsely guarantees government approval
- Helps clients bypass Indian law through hidden payments
- Discloses confidential medical information unlawfully
Violations can result in substantial fines, imprisonment and prosecution. Certain offences under the Act are treated as cognizable, non-bailable and non-compoundable.
Bottom Line
A limited surrogacy advisory consultancy can be legal in India, but a surrogate-matching agency cannot. The safest business model is restricted to lawful information, documentation and coordination with registered clinics and qualified professionals. The consultancy must never recruit surrogate mothers, negotiate compensation or promote commercial surrogacy.
Frequently Asked Questions
Q1. Can a surrogacy consultant charge professional fees?
A: A consultant may charge reasonable fees for genuine administrative or informational services. However, the fee must not be a disguised payment for locating a surrogate, negotiating compensation or arranging commercial surrogacy.
Q2. Can a consultant publish an advertisement asking interested women to register as surrogates?
A: No. Advertisements seeking or inducing women to act as surrogate mothers are specifically prohibited.
Q3. Can a consultancy keep a database of potential surrogate mothers?
A: This would create a serious risk of being treated as prohibited surrogate matching or brokerage. A consultancy should not recruit, empanel or maintain a commercial database of surrogate mothers.
Q4. Can foreign couples use an Indian consultancy to arrange surrogacy in India?
A: The Act’s eligibility framework is intended for qualifying Indian applicants. A consultancy cannot arrange surrogacy for an ineligible foreign client or design an arrangement to bypass citizenship and eligibility restrictions.
