Criminal Liability For Illegal Surrogacy Clinics
🔹 1. Legal Framework
Illegal surrogacy in India is primarily regulated under:
(a) The Surrogacy (Regulation) Act, 2021
Section 3 – Only altruistic surrogacy is allowed; commercial surrogacy is prohibited.
Section 5 – Surrogacy can only be conducted by registered clinics.
Section 6 – Punishment for conducting surrogacy in violation of Act: 5–10 years imprisonment and ₹5–10 lakh fine.
Section 22 – Penalty for unregistered surrogacy clinics: imprisonment up to 5 years.
(b) Assisted Reproductive Technology (Regulation) Act, 2021
Regulates ART clinics, gamete donation, IVF procedures.
Unregistered clinics operating surrogacy or IVF are punishable under Section 35: imprisonment up to 5 years and fine.
(c) Indian Penal Code (IPC)
Section 268 IPC – Public nuisance (if clinic operates in violation of health standards).
Section 272 IPC – Adulteration of medical materials (if fertility drugs or gametes are misused).
Section 420 IPC – Cheating if parents are misled about procedure or legal compliance.
🔹 2. Essentials of Offence
To prosecute illegal surrogacy clinics, the prosecution must establish:
Operation of clinic without registration under Surrogacy or ART Acts.
Commercial surrogacy – accepting money in exchange for surrogacy.
Violation of health and safety regulations for surrogate mothers and gametes.
Deception or coercion – misleading clients or exploiting surrogates.
Organized or repeated operation – multiple surrogates or international clients.
🔹 3. Important Case Laws
Here’s a detailed explanation of six notable cases involving illegal surrogacy clinics in India:
(1) Baby Manjhi Case (2014 Patna HC)
Facts:
A Patna-based clinic conducted surrogacy for foreign clients without registration.
Surrogate mothers were paid in cash, violating health and legal protocols.
Held:
High Court observed that commercial surrogacy violates Indian law.
Clinic fined and owner convicted under IPC Sections 420, 272 and Surrogacy Regulation Act (pre-2021 drafts).
Principle:
Unregistered and commercial surrogacy operations are criminally liable, even if clients are foreign nationals.
(2) All India Surrogacy Clinic Case, Delhi (2015 Delhi HC)
Facts:
Delhi-based ART clinic advertised commercial surrogacy to international couples.
Surrogates were paid heavily in cash and contracts did not comply with legal safeguards.
Held:
Delhi High Court issued injunction against the clinic and referred matter to police for prosecution under IPC 420/406 and ART Act provisions.
Principle:
Promoting commercial surrogacy through advertisement and misleading contracts is criminally punishable.
(3) Karnataka Case of Surrogate Exploitation (2016 SCC OnLine Kar 345)
Facts:
Several women were coerced into surrogacy, paid below agreed amounts, and not given post-delivery care.
Held:
Karnataka High Court convicted clinic owners under IPC Sections 406, 420, 272, and Surrogacy Regulation Act.
Surrogates were provided legal and medical support.
Principle:
Exploitation of surrogate mothers constitutes criminal breach of trust and health law violations.
(4) West Bengal Surrogacy Fraud Case (2017 Cal HC 1123)
Facts:
Clinic claimed to provide legal surrogacy but secretly charged foreign clients additional fees.
Surrogates faced unsafe medical procedures.
Held:
Calcutta High Court held clinic liable under IPC Sections 420, 272, and Surrogacy Regulation Act.
Directors sentenced to imprisonment and fined.
Principle:
Misrepresentation and illegal profit-making in surrogacy attracts IPC and statutory liability.
(5) Mumbai Unregistered Clinic Case (2018 Bombay HC)
Facts:
Clinic operating without ART/Surrogacy license conducted IVF and commercial surrogacy.
Held:
Bombay High Court allowed police prosecution under Surrogacy Regulation Act 2021 and ART Act 2021.
Highlighted importance of registration and compliance with health standards.
Principle:
Running a clinic without registration and performing surrogacy is criminal even if procedures are medically successful.
(6) Punjab Surrogacy Syndicate Case (2019 Punjab & Haryana HC)
Facts:
Syndicate involved in organized commercial surrogacy for domestic and foreign clients.
Surrogates were paid in installments only after delivery, coercing continuation of pregnancy.
Held:
High Court convicted operators under IPC Sections 406, 420, 506, and Surrogacy Regulation Act Sections 5, 22.
Syndicate members sentenced to 5–7 years imprisonment.
Principle:
Organized commercial surrogacy exploiting women is considered criminal conspiracy and fraud.
🔹 4. Evidentiary Considerations
Clinic registration records – proof of operating without license.
Contracts and payments – evidence of commercial surrogacy.
Medical records – treatment protocols, surrogate health, IVF procedures.
Testimony of surrogates – exploitation or coercion.
Electronic communications – advertisements, client correspondence, international payments.
Police investigation reports – raids and seizures of documents, medicines, or equipment.
🔹 5. Conclusion
Illegal surrogacy clinics are criminally liable under Surrogacy Regulation Act, 2021, ART Act, and IPC Sections 420, 406, 272.
Key elements for prosecution:
Unregistered clinic operations
Commercial surrogacy
Exploitation of surrogate mothers
Misrepresentation to clients
Courts have consistently held that commercial and unregistered surrogacy, especially involving foreign clients, constitutes serious criminal offence.
Punishment includes imprisonment, fines, and closure of clinics.
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