India moves to curb commercial surrogacy

India looks poised to introduce surrogacy legislation following several developments that could lead to a blanket ban on commercial surrogacy.

A draft bill put forward by the health ministry and the National Commission for Women (NCW) seeks to ban surrogacy for all foreigners, including Indians who live overseas, people of Indian origin and foreigners married to Indian citizens.

Under the proposed legislation, couples seeking surrogacy arrangements would also have to abide by stricter regulations, including proving that they have been married for a certain period of time and providing a medical certificate stating that the woman is unable to conceive. They will also have to appoint a local guardian to look after the surrogate before and after pregnancy.

'Most of the surrogate mothers are poor women. They face several hardships during the process,' said NCW chairperson Lalita Kumaramangalam, citing ambiguous and unenforceable surrogacy contracts, health concerns and exploitation due to surrogates' socioeconomic situations.

Kumuramangalam also told the Economic Times that legislation would need to deal with the contribution of surrogacy to human trafficking in the country.

'We don't want to become hub of surrogacy in the world. There are a huge number of women who are trapped into this,' she added.

The health ministry has also agreed to a request from the NCW to make provisions in the bill for single women, including widows and divorcees, to become surrogates. However, it makes no mention of making surrogacy commissioning available to single people or unmarried couples.

The bill was originally drafted in 2010 and revised in 2013. This latest edition is now under public consultation and should be finalised by mid-November.

The arrival of the draft bill coincides with criticism of the Government by the Supreme Court for not imposing sufficient legislation on surrogacy, which remains largely unregulated in the country.

The Court is hearing a public-interest litigation (PIL) to ban commercial surrogacy, which has thrived in recent years. The industry is reportedly now worth US$445 million (£287 million) annually, and there are thought to be at least 3,000 clinics offering surrogacy services.

The PIL claimed that commercial surrogacy exploits Indian women and that the country had become a 'baby factory'.

This week, the Supreme Court agreed, telling the Government: 'Commercial surrogacy should not be allowed but it is going on in the country. You are allowing trading of human embryo. It is becoming a business and has evolved into surrogacy tourism.'

The Court suggested the Government remove a notification that has allowed the importation of embryos into the country since 2013 and that they should limit the importation of embryos to medical research until the surrogacy legislation makes its way through Parliament, which is expected to take around three months.