India to Enact a New Law on Surrogacy

For the past two decades, India has been the place for foreigners who seek to have a child through surrogacy, the states of Gujarat and Kerala being in the forefront with well-established clinics, doctors and middlemen, all working in tandem to ensure a foreign couple or even a single parent be blessed with a child and who were ready to loosen their purse by approximately USD 30,000.

Such was the clamor surrounding surrogacy in India that it led to the mushrooming growth of several commercial firms and even law firms claiming specialty in surrogacy law and assisting foreigners to have their child in India through a surrogate Indian mother.

Several foreign companies too entered India by establishing their own companies to assist nationals from around the world identify a surrogate mother in India, negotiate the fee to be paid by them to the Indian mother for carrying the child in her womb, navigate the foreigners through the maze of paperwork (which in fact was meagre given the fact that India did not have a law on surrogacy and will not have one till the new Bill becomes law), and even assist the child in obtaining a passport and a visa to leave the country.

All this is set to be history with the Indian Government proposing a new Bill which bans commercial surrogacy in India even for Indian citizens. Once the Bill becomes law only altruistic surrogacy will be permitted. Surrogacy will not be permitted for single parents as well as homosexuals. 

The fact that India had no surrogacy laws in place coupled with the fact that the Indian Council of Medical Research (ICMR) had only a few rules in place (intertwined with rules for Assisted Reproductive Technology) which never had the approval of a legislature, led to rampant unregulated commercial surrogacy. Surrogacy was openly being discussed in households, a rarity in an otherwise conservative society, which even led to a cine actor having a child through a surrogate mother and who was promptly congratulated by several people from his own folk for being bold and open and was even seen as a star endorsing surrogacy in India, if not in its commercial form.

Surrogacy in India even had its ugly side when on a few occasions the matter reached the courts. Once the highest court in India i.e. the Supreme Court had to grapple with unintended consequences in the case of Baby Manji Yamada vs Union of India and another (reported in AIR 2009 SC Page 84), when the Japanese couple who sought to have their surrogate child through an Indian mother, abandoned the child after its birth as they had separated meanwhile, and the grandmother had to knock on the doors of the court for the grant of necessary documentation to take the child back home with her which was granted. In another case, less worrying than the above, the Gujarat High Court ruled that the birth certificate of the child born through surrogacy, should carry the name of the surrogate mother as against the biological mother, and the child would be granted a passport as an Indian citizen, and the surrogate mother, in turn, had to give the child in adoption to the German couple, who sought the services of the Indian surrogate mother. The Supreme Court is still seized of an appeal against this decision and during a hearing the Supreme Court felt that there is an urgent need for a law on the subject which has resulted in the new Bill being brought for enactment.

On another occasion, twins were born to the surrogate mother and the Australian couple chose to take home one of the two and rejected the other and the surrogate mother was left to care for the neglected child.

All of these will now be only of academic interest as the new Bill rules out surrogacy for foreign citizens approaching Indian mothers. The ban is already in place through a letter dated 28th September 2015 from ICMR to all clinics in India directing them not to assist foreign couples in their attempts to have a child through a surrogate mother in India. The Bill formally intends to endorse the ban through a legislative assent.

The other highlights of the Bill include that only a legally wedded husband and wife who are childless for five years can seek the services of a relative, who must have herself already borne a child, to be a surrogate mother and who further cannot be a foreigner or a non-resident. Also Indian couples who already have a child either natural or adopted cannot go in for surrogacy. 

Legal experts have already begun debating whether the new Bill when it becomes a law, will pass the scrutiny of the courts given the fact that the new law might violate a woman’s right to bear a child, which is a fundamental right under Article 21 of the Constitution of India. Others fear that the new law might push commercial surrogacy underground which might pose a serious threat to the health and life of the surrogate mother.