6 things about Indian surrogacy law that you need to know

1. What is the buzz regarding surrogacy law in India about?

The new "Surrogacy Bill" has been cleared by the Cabinet and is awaiting its passage by the Parliament. Earlier, the Draft Assisted Reproductive Technology Bill, 2014 (ART Bill) which had surrogacy as one of it's concerns was awaiting to be passed but has not yet seen light of the day. Public comments on the ART bill had however been invited last year and saw responses from stakeholders.

2. How does it affect India?

India has been a commercial hub for surrogacy before the regulations were put by government in 2013, restricting it for Indian married couples, PIOs and NRIs and then in 2015 when it was limited to Indian married couples only. The estimated economic activity due to surrogacy was pegged to be in multi-billion by some publishers. Surrogacy invited "medical-tourism" from the countries where it was illegal or regularized or simply due to low costs. There are multiple research publications claiming that the industry exploited poor women in India. Supreme Court has also been considering the legality of the concept of commercial surrogacy and the government's action seems to be a reaction to the questions put forward to it by the court.

3. How was surrogacy regularized earlier and what are the key changes?

In India surrogacy was regularized only through contracts between the surrogates and the commissioning parents. The contracts usually facilitated by the surrogacy clinics, would lay terms which many thought were harsh on the surrogate mother. The mother was basically asked to let her womb on rent and not ask questions about the child. Arguably, these clauses help to prepare women psychologically for their gestation. If there was any fallout from the contract, the parties had to approach the courts in India. What made the matters complicated is the multi-country nature of jurisdiction of the contracts. Cases of commissioning parents abandoning the baby were landmark cases due to which certain guidelines were formed to regulate surrogacy.

If the surrogacy bill is passed in the present form, it will lead to following major changes.

a. Homosexuals, foreign nationals, live-in couples, persons of Indian origin or NRIs, single people and parents who already have a kid cannot go for surrogacy in India.

b. The only method of surrogacy that would be allowed is altruistic, so the parents cannot pay the woman keeping the child in her womb

c. There will be restrictions on the surrogates age, marital status as well as a pre condition of her having a child of her own

d. The Indian married couple looking for surrogacy would have to be childless for at least five years before getting permission for surrogacy

4. What is the status of the surrogacy laws in the world?

Spain, UK, China, Canada, Thailand and Australia only allow altruistic surrogacy and some have their regulations regarding allowing only heterosexual married couples to opt for it. Surrogacy in Norway, Sweden, France forbid surrogacy. After India shut its gates to commercial surrogacy earlier this year, Mexico, Nepal, Poland and Ukraine are increasingly getting popular as surrogacy hubs. However, the quality of medical services in India is believed to be one of the best among these countries and sometimes couples and the surrogate opt to travel to India to get the IVF cycle process done. 

5. What are the lawmakers' point of view about the surrogacy bill?

Foreign Minister of India, Sushma Swaraj who was a part of the panel set up by the government to draft this litigation gave following comments to the press:

a. Concerns about abandoned children:  "Many so-called childless couples were misusing the wombs of poor women. It was a matter of great worry because there were instances where a girl child or disabled child have been abandoned soon after birth.”

b. Chances of divorce among foreigners “We have had cases where the couple take the child from the surrogate mother and then they get divorced after some time,” Swaraj said. “The child belongs to nobody. This is why we disallowed foreigners.”

c.  Concerns about surrogacy having become a fashion  “unfortunate” that couples who already have a son and a daughter of their own, opt for surrogacy “just because it is fashionable”.

d. Concerns about our ethics "“We do not recognise homosexual or live-in relationships, that is why they are not allowed to commission babies through surrogacy. It is against our ethos.”