BAN! FOREIGNERS COMMISSIONING SURROGACY IN INDIA

India has been the place for foreigners who look for a child through surrogacy for the past two decade. The shout out for surrogacy in India was such that it led to the growth of several commercial firms and even law firms claiming speciality 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 and even assist the child in obtaining a passport and a visa to leave the country.

All this is set to be history as foreigners may no longer be able to choose a womb for their child in India as the central government has proposed to bar them from commissioning surrogacy in India. The proposal is a part of the newly-drafted Assisted Reproductive Technology (ART) (Regulation) Bill, 2014, which has been put out by the Department of Health Research under the health ministry.

However, the draft Bill proposed to allow surrogacy to overseas citizens of India (OCIs), people of Indian Origin (PIOs), non resident Indians (NRIs) and even to foreigners married to an Indian citizen. But it states that such couples will have to comply with certain conditions for commissioning surrogacy. For an instance, such couples will have to be married and the marriage should have sustained for a considerable period of time. They also have to produce a certificate saying ‘the woman is unable to conceive her own child.’ A foreigner married to an Indian citizen shall have to come on a ‘Medical Visa for surrogacy’. Those seeking surrogacy will also have to appoint a local guardian who shall be legally responsible for taking care of the surrogate during and after the pregnancy.

The National Commission for Women (NCW) has also asked for single women to be allowed to become surrogates. But, the draft Bill is silent on single parents and commissioning of surrogacy by couples in a live-in relationship. As per the draft, if OCI, PIO and a foreigner married to an Indian citizen seeks sperm or egg donation, or surrogacy in India, and a child or children are born as a consequence, the child or children, even though born in India, shall not be an Indian citizen but shall be entitled to Overseas Citizenship of India according to the Citizenship Act, 1955.

The Bill also proposed to make it mandatory for all couples commissioning surrogacy to accept the custody of the child or children irrespective of any abnormality that the child or children may have. Commissioning couple shall submit a certificate indicating that the child/children born in India through surrogacy is/are genetically linked to them and they will not involve the child/children in any kind of pornography or pedophilia.

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 of the Constitution of India.

Sanchayeeta Das

Legal Associate

The Indian Lawyer