Surrogacy law update: Changes to Indian surrogacy law

Background

Since commercial surrogacy was legalised in India in 2002, the country has proved a popular destination for prospective parents intending to have a child via a surrogate. India’s surrogacy industry is estimated to be worth approximately $2.5billion and 25,000 foreign couples are estimated to visit India each year for surrogacy services.

India’s unregulated “surrogacy tourism” industry has however been subject to criticism and measures are now being introduced to regulate the so-called “rent-a-womb” culture.

New Measures

The Indian Council of Medical Research and Ministry of Health and Family Welfare have drafted The Assisted Reproductive Technologies (Regulation) Bill 2010 which is currently with Parliament for approval.

Home Ministry guidelines stipulate that to be eligible to enter into a surrogacy arrangement in India, intending parents must be a “man and woman” who are “duly married” and have been married for at least two years. Applicants must now enter the country on a medical visa rather than the previously allowed tourist visa. A medical visa will only be valid for three months from the date of issue and some couples have reported delays in obtaining the requisite visa.

Although the legislation is not yet enacted it has been reported that surrogacy clinics in India are already being required to register with the Indian Council of Medical Research and ensure that their foreign patients have the required Medical Visas before any treatment is given.

Issues

The new rules are severely detrimental to gay couples, single people and unmarried straight couples, for whom surrogacy may be illegal or very tightly regulated in the country in which they are domicile. Whilst some States in the USA, particularly Florida and California, are considered to be highly accommodating of surrogacy practices the cost of using a surrogate in America can be more than three times that of using a surrogate in India, thus preventing many intending parents from having a family in this way.

Supporters of regulation of surrogacy practices in India say that the current lack of legislation allows wealthy foreigners to exploit young, poor Indian women and to “commoditise” children. However, whilst the draft legislation does now place age restrictions on women who are eligible to be surrogates, there is no provision for minimum payment for surrogates and the measures proposed do not appear in any way relevant to addressing the issue of protection for surrogates.

The changes have been denounced by fertility clinics, gay rights activists and medical professionals for being discriminatory, without logic and introduced without proper consultation.  Some surrogates who are already pregnant for intending parents are concerned that the children they are carrying will be caught out by visa changes and could be left “stateless” due to their intending parents’ lack of ability to take them home after their birth.

It is yet to be seen whether the draft legislation will be challenged in the courts.

For more information on surrogacy or any other area of family law, contact Lisa Kemp