Transgender Persons and Altruistic Gestational Surrogacy in India: Understanding the Current Legal Position
- Sunil Khattri
- May 13
- 4 min read
Parenthood and the desire to build a family are deeply personal aspirations. Over the last decade, India has seen important legal progress in recognising the rights and dignity of transgender persons. However, when it comes to reproductive rights and family-building through surrogacy, the legal landscape remains highly restrictive.
Today, one of the most debated questions in Indian reproductive law is this:Can transgender persons legally access altruistic gestational surrogacy in India?
The answer, under current law, is largely no. But the issue is increasingly being challenged in courts and public discourse, especially in light of constitutional protections relating to equality, dignity, and personal liberty.
What Is Altruistic Gestational Surrogacy?
Under Indian law, only altruistic gestational surrogacy is permitted. This means:
The surrogate mother cannot receive commercial payment or compensation.
Only medical expenses and insurance coverage are allowed.
The surrogate carries a child genetically related to the intending parent(s), but does not contribute her own egg.
Commercial surrogacy, where surrogates are paid beyond medical expenses, is completely prohibited in India under the Surrogacy (Regulation) Act, 2021.
The law was introduced to prevent exploitation, unethical fertility practices, and commercialisation of women’s reproductive labour.
Who Can Legally Access Surrogacy in India Today?
The current law allows surrogacy primarily for:
Married heterosexual Indian couples facing medical infertility
Certain categories of single women, such as widows and divorcees within prescribed age limits
The law also imposes strict age and eligibility criteria.
At present, the law does not explicitly recognise transgender persons, same-sex couples, live-in partners, or single men as eligible intending parents under surrogacy regulations.
The Latest Government Clarification on Transgender Persons
The issue returned to public attention recently after the Central Government clarified that transgender persons are currently not eligible to avail altruistic gestational surrogacy services under existing Indian law. This clarification was reportedly given in response to a query raised in Kerala regarding the interpretation of the Surrogacy (Regulation) Act.
The development sparked renewed debate around reproductive equality and LGBTQ+ family rights in India.
Many activists and legal experts argue that excluding transgender persons from surrogacy may conflict with broader constitutional protections recognised by Indian courts in recent years.
The Constitutional Debate Around Reproductive Rights
India’s legal conversation around transgender rights changed significantly after the landmark Supreme Court judgment in NALSA v. Union of India, which recognised transgender persons as a “third gender” and affirmed their constitutional rights to dignity, equality, and self-identification.
Since then, courts have repeatedly expanded conversations around:
privacy
bodily autonomy
reproductive choice
family life
Supporters of inclusive surrogacy rights argue that the ability to build a family is closely linked to these constitutional values.
At the same time, the government has maintained that altruistic gestational surrogacy is a statutory right governed by legislation, and therefore eligibility conditions can legally be restricted. Similar arguments have also been seen in recent court cases involving age limits and surrogacy eligibility.
Challenges Faced by Transgender Persons
For transgender individuals, the current legal framework creates significant barriers to parenthood through assisted reproduction.
These challenges include:
exclusion from altruistic gestational surrogacy eligibility
lack of recognition of non-traditional family structures
limited access to ART and fertility preservation services
uncertainty around parentage documentation
Many transgender persons who wish to become parents are therefore left with limited legal pathways within India.
Ongoing Legal Challenges and Petitions
The issue is now increasingly reaching constitutional courts.
A notable petition before the Supreme Court, including the matter involving Dr. Aqsa Shaikh, challenges provisions of the surrogacy law that restrict access only to certain categories of intending couples or women. The petition argues that excluding transgender persons and unmarried individuals may violate constitutional guarantees of equality and dignity.
These petitions are part of a broader national conversation about whether Indian family laws should evolve to recognise diverse family structures.
Why India Chose an Altruistic-Only Model
India’s restrictive surrogacy framework emerged largely because of serious concerns around exploitation during the earlier era of commercial surrogacy.
Before regulation, India had become a major global surrogacy destination. However, concerns grew around:
exploitation of economically vulnerable women.
lack of informed consent.
unethical fertility practices.
commercial middlemen and agencies.
As a result, the law adopted a highly controlled altruistic-only system focused on preventing exploitation.
However, critics argue that while the law succeeded in restricting commercialisation, it also excluded several categories of people seeking parenthood.
The Larger Question: Who Gets to Form a Family?
The debate around transgender access to surrogacy is ultimately part of a much larger question in Indian law and society:
Who is legally recognised as deserving of family and parenthood?
As Indian courts continue hearing challenges relating to:
altruistic gestational surrogacy eligibility
reproductive autonomy
LGBTQ+ rights
secondary infertility
family structures
The legal position may continue evolving in the coming years. For now, however, the current law remains restrictive.
Final Words
India’s surrogacy laws attempt to balance ethics, child welfare, and protection against exploitation. But they have also opened difficult constitutional and social questions around equality and reproductive rights.
At present, transgender persons are effectively excluded from accessing altruistic gestational surrogacy under the existing legal framework. Yet ongoing legal challenges and public debate indicate that this issue is far from settled.
As conversations around family, identity, and reproductive autonomy continue evolving in India, the law may eventually be required to answer a deeper question:
Should the right to build a family depend on gender identity or traditional family structures?
The Author :
Dr. Sunil Khattri
+91 9811618704
Dr Sunil Khattri MBBS, MS(General Surgery), LLB, is a Medical doctor and is a practicing Advocate in the Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi.
Comments