India debates new surrogacy laws

The Indian Parliament is debating new surrogacy laws to establish a clear regulatory framework to reduce exploitation in its commercial surrogacy market. If passed in its current form, India will recognise surrogacy agreements as legally binding.

The Assisted Reproductive Technologies Regulation Bill 2010 introduces a set of legally binding rights and restrictions for all parties involved. Under the Bill, foreign commissioning individuals or couples must prove that surrogacy is permitted in their home country and that any resulting child will be permitted entry - and be recognised as the biological child of the commissioning individual or couple.

Foreign parents must also appoint a local guardian, who will be responsible for the surrogate and baby until the baby is collected. If the baby is not collected it remains the responsibility of the local guardian, who is permitted to hand over the child to an adoption agency. The Bill also makes it illegal for women to travel outside India to act as a surrogate.

On payments, the Bill says the surrogate's expenses must be met by the couple or individual seeking surrogacy and permits 'money compensation' for agreeing to be a surrogate. A surrogate will also be bound by law to relinquish her parental rights over the baby although she is not permitted to act as an egg donor for the commissioning parents. The birth certificate will bear the name or names of the commissioning individual or couple as parents.

Defining 'couples' as 'two persons living together and having a sexual relationship that is legal in India', the Bill may exclude gay and lesbian people. Professor Andrea Whittaker, of the University of Queensland in Australia, has commented that this exclusion could considerably reduce India's market share in commercial surrogacy.

But, Dr Gautam Allahbadia, a member of the drafting committee for the Bill and also the Medical Director at the Centre for Human Reproduction in Mumbai, said the new laws will remove current legal difficulties and will make surrogacy 'easy'.

Dr Allahbadia predicts the number births as a result of surrogacy to rise by approximately 10 to 15 percent and points to a World Bank report which estimates India's commercial surrogacy industry will be worth US$2.5 billion by 2020. At present, India is the only region in Asia that permits commercial surrogacy, said Professor Whittaker.

The Bill also stipulates the surrogate must be an Indian citizen, between 21 and 35 years of age and, if she is married, will require the consent of her husband. She will not be allowed to undergo embryo transfer for the same commissioning individual or couple more than three times. Nor will she be allowed to produce live births more than five times, the birth of her own children.

The Bill is currently with the Law Ministry, awaiting approval. The legislation also covers IVF, pre-natal determination and surrogacy.