India’s draft surrogacy Bill bars homosexuals, live-in couples

New Delhi (Vidya Krishnan/Mint) : India’s long-awaited surrogacy Bill will disqualify homosexual couples, foreign single individuals and couples in live-in relationships from having children through surrogate mothers in India. The law also imposes age restrictions on surrogate mothers.

Critics said the strict norms of the proposed ART Bill will see the activity moving to more conducive destinations such as Thailand. Surrogacy is a method of reproduction where a woman—the surrogate—agrees to carry a pregnancy to term for a fee.

In January, the home ministry had barred homosexuals and foreign single individuals.

“I do not understand why the law has to be discriminatory towards unmarried foreigners when unmarried Indians are allowed this facility,” said Ritu Bakshi, chairperson of the International Fertility Centre in Delhi.

“It is fair to expect that surrogacy should be allowed in the country of the commissioning couple because citizenship of the child becomes an issue otherwise. Other than this, many restrictions imposed are not encouraging for business. A majority of our clients are from foreign countries. To expect this sector to not have commercial interest is naïve. Surrogacy is very expensive across the world,” she added.

The current version of the draft law has undergone several modifications after inputs from the law ministry and the ministry of external affairs after recent diplomatic incidents.

“The sector is fraught with ethical and legal issues which the Bill seeks to address,” said R.S. Sharma, deputy director general and member secretary of the drafting committee of the proposed legislation, Indian Council of Medical Research( ICMR).

“In its current form, the Bill addresses all issues pertaining to ethics in commercial surrogacy. The health ministry’s mandate was very clear—this Bill is only to help infertile couples and should act as a deterrent to commercial surrogacy,” he said.

According to a 2012 study by the Confederation of Indian Industry (CII), the sector is worth $2 billion, despite being completely unregulated. The CII study estimated that nearly 10,000 foreign couples visit India for reproductive services and nearly 30% are either single or homosexual.

In earlier versions—in 2008 and 2010—the ART Bill relied on contract law to establish a relationship between the commissioning parents and the clinic. In the current version, the Bill states that a professional surrogate will be hired by a government-recognized ART Bank and not private fertility clinics, the current practice.

The compensation, as per the 2013 draft, will be a private negotiation between the surrogate mother and commissioning parents.

“The IVF (in-vitro fertilization) clinics or ART banks will have no role to play in this contract. Currently, IVF clinics decide the amount and pay the surrogate mother a portion. This could be exploitative and so we have changed this provision,” Sharma said.