What the surrogacy agreement is actually for, what the law requires it to carry, and the things families wish they had settled in writing at the start.
Written / Reviewed by Oji Surrogacy Team
The surrogacy agreement is the document families skim and later wish they had read twice. It is not a formality produced to satisfy a clinic. It sets out who is responsible for what, across a process running the better part of two years, and involving a person carrying real physical risk for you. Read it properly.
What Is the Agreement For?
It records the arrangement between the intending parents and the surrogate. So that nobody is relying on a conversation they half remember.
Under the Surrogacy (Regulation) Act, 2021 the arrangement must be altruistic, which means the surrogate receives no fee, no profit and no inducement for carrying the pregnancy. What may lawfully be covered is her pregnancy-related medical expenses and her insurance. The agreement exists partly to make that boundary explicit, because a vague document is where impermissible payments hide.
What Does the Law Require Around It?
Several things sit alongside the agreement and none of them is optional.
The surrogate's informed consent has to be real and recorded, which means she understands the procedure, the risks and her right to withdraw before implantation. Her insurance must run 36 months and cover postpartum delivery complications, from an IRDAI-recognised insurer. There is normally a court order dealing with parentage and custody, and the certificates of essentiality and eligibility have to be in place before any transfer.
Our guide to surrogacy law in India sets out how these pieces fit together.
What Are the Intending Parents Responsible For?
More than most people assume at the outset.
You carry the surrogate's medical expenses through pregnancy, delivery and the care around both. You arrange and pay for her insurance for the full 36 months. You are responsible for the child from birth, and that responsibility does not bend if the pregnancy produces a medical complication or an outcome you did not plan for. The Act does not permit a child to be abandoned on those grounds, and no agreement can create a right to do so.
What Is the Surrogate Entitled To?
Her consent is hers to give and hers to withdraw before implantation, and an agreement cannot sign that away.
She is entitled to the medical care the arrangement covers, to her insurance, and to be told what is happening to her own body in terms she understands. She is also entitled to be treated as a party to this rather than a service being delivered, which sounds obvious and is what most often goes wrong.
What Should You Settle in Writing Early?
The law covers the structure. These are the things families regret leaving to assumption.
Contact: how often, through whom, and what happens after the birth
Medical decisions: who is consulted, and how a disagreement gets resolved
The delivery: who will be present, and what she is comfortable with
Antenatal care: which centre, who accompanies her, who pays what and when
Information: what she is told about the pregnancy and what you are told
None of these are difficult conversations in month one. All of them are difficult conversations in month seven.
What Happens If Something Changes?
Two years is long enough for circumstances to move, and the agreements that hold up are the ones that anticipated it.
Think about what happens if a transfer fails and you want to try again, and whether that sits inside the existing arrangement or needs a fresh one. Think about the surrogate's own health changing mid-pregnancy, or her family circumstances shifting. Think about who is responsible for her care if a complication runs well past delivery, which is what the 36 months of insurance is there for.
None of this is pessimism. It is the difference between a document that works on the ordinary days and one that works on the hard ones.
Who Should Draft It?
Somebody qualified. And somebody who is not also selling you the treatment.
An agreement produced as a template by the centre performing the procedure has an obvious tension in it, because the party drafting your protections is the party those protections would be enforced against. Have it reviewed independently by a lawyer who works in this area. The cost of that review is trivial against what it protects.
Where Should You Start?
Ask what each clause means in a situation that goes wrong, not one that goes well. And do not sign anything on the day it is handed to you.
Our FAQs cover the questions families ask most often at this stage. We do not operate treatment centres and take no commission from any, so when we tell you a document needs a second look, we have nothing riding on the answer.
