The Central government has clarified that transgender individuals, whether married or unmarried, are not eligible to avail surrogacy services under the existing provisions of the Surrogacy (Regulation) Act, 2021. This clarification came in response to a query from Kerala, a state often regarded as one of the most progressive in India regarding transgender rights.
Background of the Query
In a communication dated April 15, 2026, accessed by The Times of India, the Ministry of Health and Family Welfare informed Kerala's state nodal officer for assisted reproductive technology (ART) and surrogacy that the current law permits surrogacy services only for three specific categories. These include an 'intending couple' comprising an Indian married man and woman, an 'intending woman' who is a widow or divorcee, and couples of Indian origin where both husband and wife are Overseas Citizen of India (OCI) card holders.
The clarification was issued after Kerala sought the Centre's opinion on a case involving a transgender woman who is legally recognized as female under Indian law and is married to a male partner. According to the query sent by the state, the transgender woman, assigned male at birth, had approached the state's appropriate authority seeking gestational surrogacy using donor oocytes through a registered private surrogacy clinic. The state informed the Centre that while the applicant's gender is legally recognized as female, she does not possess a uterus and is biologically incapable of gestation.
Key Questions Raised by Kerala
The state sought clarification on three main points: whether such a couple could qualify as an 'intending couple' under the Surrogacy (Regulation) Act, 2021; whether legal gender recognition alone is sufficient for determining eligibility under the Act; and whether a transgender woman legally recognized as female but lacking a uterus could be considered eligible for gestational surrogacy under the existing statutory framework.
Centre's Response
Replying to the query, the Centre referred to Sections 2(1)(h), 2(1)(r), 2(1)(s), and Section 4(ii)(a) of the Surrogacy Act. The Centre stated, "As per the aforesaid sections of the Surrogacy Act, 2021, only (i) intending couple (Indian married man and woman), (ii) intending woman (Indian woman widow or divorcee), and (iii) couple of Indian origin (both husband (male) and wife (female) OCI card holders) are eligible to avail surrogacy services in India, subject to fulfilment of eligibility criteria." The communication, signed by the Under Secretary of the Ministry of Health and Family Welfare, further stated, "In view of the above provisions, it is stated that the transgender persons (married or unmarried) are not eligible to avail surrogacy services under the Surrogacy (Regulation) Act, 2021 and rules made thereunder."
Significance for Kerala
This issue holds particular significance for Kerala, which was the first state in the country to introduce a transgender policy in 2015. Since then, the state has implemented several transgender welfare measures, including healthcare support, educational assistance, self-employment schemes, and legal recognition initiatives. The clarification highlights the limitations of the current legal framework in addressing the needs of transgender individuals seeking surrogacy services.
About the Author: Sai Kiran K P is an Assistant Editor with The Times of India, based in the Thiruvananthapuram bureau, where he has been working since 2011. He has reported from New Delhi and Kerala, covering subjects ranging from crime and courts to governance and public policy.
