Laws on surrogacy in India

Is surrogacy legal in India?

Yes, commercial surrogacy is legal in India. But it’s still unregulated in our country as we don’t have legislation controlling surrogacy. And although the Indian Council of Medical Research (ICMR) has set ‘national guidelines’ to regulate surrogacy, these are still simply guidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.

Landmark cases regarding surrogacy

It was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district in Gujarat.

Indian Council for Medical Research’s guidelines for surrogacy

In 2005, The Indian Council for Medical Research gave guidelines to help regulate Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

• Surrogacy arrangement will continue to be governed by a contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear the child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
• A surrogacy arrangement should provide for financial support for the surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
• A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
• One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child, which is resorted to if biological (natural) parents and adoptive parents are different.
• Legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
• The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
• Right to privacy of donor as well as surrogate mother should be protected.
• Sex-selective surrogacy should be prohibited.
• Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Prevalence and success of surrogacy in India

Prevalence in India is hard to predict as there are no exact figures available and prevalence is also dependent on specialised centres that cater to surrogacy as an option to couples that have no other way of getting a baby of their own.

However, the success rate of surrogacy is almost 45% with fresh embryos and 25% with frozen embryos.

The package for surrogacy in India almost costs 50% less as compared to other countries and can vary between Rs 8,00,000 to 15,00,000 approximately.

The surrogacy package price estimate above, covers doctor fees, legal fees, surrogate work up, antenatal care, delivery charges, surrogate compensation, egg donor, drugs and consumables, & IVF costs.

In January 2013, Union Home Ministry Issued Strict Guidelines for Regulating Surrogacy in India

The Union Home Ministry in India issued stricter guidelines for those visas which are used by the foreign nationals interested in surrogacy. This is said to be the archetypical step by the Home Ministry to regulate surrogacy in India. The new guidelines indicated that single foreigners as well as the gay couples would not be eligible for having the Indian surrogate. Only those foreign man and woman, who are married for at least two years, would be granted the visas.

The Union Home Ministry stated that they had noticed a few foreign nationals visiting India for the purpose of surrogacy on their tourist visa, which is not appropriate. Back in July 2012, the Union Ministry of Home Affairs had decided in the circular sent to foreign embassies that the foreigners were entitled to enter India for surrogacy only on their medical visas and no other kind of visas. Also, it was mandatory for the foreign nationals to fulfill a few criterions. The circular was notified on 17 December 2012 by the Foreign Regional Registration Office in Mumbai and was also sent to the fertility clinics. 

The guidelines are issued when the legislation for regulating the fertility clinics is waiting for tabling in the Parliament. This legislation is called the Assisted Reproductive Technology (ART) Regulation Bill 2010.

Conditions laid down by home ministry

Foreign couples who intended to have an Indian surrogate should provide a letter from the Foreign Ministry of their country or the embassy in India, certifying that the home country recognises surrogacy. This is important because a lot of countries such as Norway, Italy, France and Germany do not recognise surrogacy. 

The letter which would be certified also needs to have an assurance that children or a child born from Indian surrogate would have the rights to enter the home country as a biological child. This was mainly essential because in the recent past, a lot of babies born from cross-border surrogacy were refused to be accepted as the biological child. 

Norms of Home Ministry compatible with ICMR guidelines

The norms laid down by the Home Ministry are also compatible with the guidelines of Indian Council of Medical Research (ICMR). ICMR only recognised man-woman marriages and not gay marriages. Additionally, the ICMR had encouraged various fertility clinics to get registered. The guidelines of Home Ministry made it obligatory for the foreign nationals to undertake the treatment from registered ART clinics which are recognised by ICMR. 

What would happen with regulation of ART?

•Foreign nationals who wished to have a surrogate child should be on the medical visa. 
•Only heterosexual couples would be eligible for this visa. This couple should have been married for two years. 
•The foreign ministry of the home country or the embassy in India should certify recognizing surrogacy.
•Official assurance is required that child or the children would be allowed entering home country as the biological child of couple.
•The procedure of surrogacy should be done only at Assisted Reproductive Technology clinic which is recognised by ICMR.

Court: A Surrogate Mother and Her Husband Have No Right over Child

A Delhi court on 11 April 2013 ruled that a surrogate mother and her husband cannot have any right over a child conceived and delivered through artificial means. The court ruled that definition of term surrogacy in guidelines laid down by Indian Council of Medical Research itself recognizes that the intended parents are parents genetically related to the child and not the surrogate mother or her husband.

Additional Senior Civil Judge Sonu Agnihotri's remarks came while declaring a single woman from the UK as the biological mother of a boy delivered by an Indian woman acting as a surrogate mother. The court passed the order on a suit initiated by the UK national who, after having received the custody of the child from the surrogate mother, moved the court praying for a decree declaring her as the biological mother of baby boy to put to rest her apprehension that in future, the surrogate mother or her husband might claim custody of the boy.