Surrogacy Laws in India, Right Now

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Mar 27, 2018

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Recently the state of surrogacy in India has been a barrage of mixed information and confusion. On the one hand, plenty of celebrities in India are having babies through surrogacy; on the other hand, reports of much tougher surrogacy laws make the reproductive option seem impossible. Here’s what you need to know.

Presently, India does not have any enforceable laws in place when it comes to the surrogacy process. Surrogacy was made legal in India in 2002, and with the law came guidelines from the India Council of Medical Research. But these guidelines were truly just that: lax, unenforceable suggestions, without legislative backing.

This means there is no law to ensure a baby born via surrogacy in fact has parents — as in the case of Baby Manji vs Union of India, in which a Japanese couple opted for surrogacy via an Indian birth mother; when the couple divorced, the wife rejected the baby that was biologically tied to the father, the birth mother declined to keep the baby, and the court denied custody to the single male parent. (Ultimately, Japan gave the baby a humanitarian visa and granted the grandmother custody, on behalf of her son.)

Similarly, there is also no law to ensure commissioning parents have legal rights to a child; a surrogate mother can keep the baby she gives birth to and be well within her rights.

And there is no law that ensures a baby born via surrogacy has a nationality — as in the case of the stateless twins born to a German couple via an Indian surrogate.

In other words, no party involved has any protected rights. When surrogacy agreements go wrong like this, the Court has had to deal with cases on an ad hoc basis, often turning to surrogacy laws from other countries, including Ukraine, Japan and the US, for guidance. Not really a sustainable situation for a country with a $400 million surrogacy industry.

In the past, numerous bills have been drafted only to never be presented in Parliament. However, the Surrogacy (Regulation) Bill, drafted in 2016 and reported extensively, has seen more active response, reaching the Prime Minister’s office. Two years later, the Bill is in the process of being amended.

If passed, the Surrogacy (Regulation) Bill would essentially ban commercial surrogacy in India. You would be able to become parents via surrogacy only if you’re a heterosexual Indian couple — between 23 to 50 years for the woman, and 26 to 55 years for the man — who have been married for more than five years with proof that at least one of you is infertile, and your surrogate is a close relative between 25 to 35 years who is married and has at least one child of her own. The only money you could offer would be the payment of her medical expenses. If you’ve been married less than five years, or are older or younger than that age range; if you’re single, if you’re foreign, if you’re cohabiting but unmarried, and if you’re gay, you’d be out of luck.

Ostensibly to prevent exploitation of underprivileged women — an admirable goal — the bill is clearly flawed. And unfortunately, the only amendments that appear to be under discussion are provisions for Non-Resident Indians (NRIs) and Overseas Citizen of India (OCI) (as well as people withing the now defunct Persons of Indian Origin system) — assuming, of course, these couples are heterosexual, fit the age range, have proof of infertility, have been married for at least 5 years and have a close female relative who is married with a child and doesn’t mind getting knocked up without any kind of recompense.

The current scenario of surrogacy in India definitely calls for regulation — for the sake of children, birth mothers and commissioning parents — but surely there’s a way to make the rules more equal and accessible for all hopeful parents. Here’s hoping the Government finds it.

 

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Written By The Swaddle Team

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