India was once fast emerging as the ‘surrogacy capital of the world’. The ‘fertility tourism’ was booming with a $445 million business. A large number of poor Indian women were turning paid surrogates for childless foreign couples. The main reasons why the surrogacy business in India was booming were low medical costs, an extremely qualified medical workforce and lax surrogacy laws.
The new surrogacy laws in India changed the surrogacy scenario.
But before we discuss the Surrogacy Laws, let’s talk about what surrogacy is exactly.
Surrogacy is a process of assisted reproduction where parents work with a gestational surrogate mother who will carry and care for their baby until birth. Often parents use surrogacy to start their families when they aren’t able to do so on their own.
Generally, there are two types of surrogacy:
Full surrogacy: In this process, doctors plant an embryo in the womb of a surrogate mother. To create an embryo people can use any of the subsequent methods :
- The eggs and the sperms both belong to the proposed parents
- A donated egg is fertilized with the sperm of the proposed father
- Doctors use both donor egg and sperm to create an embryo
Partial Surrogacy: This type of surrogacy involves artificial insemination using the sperm from the intended father and an egg from the surrogate mother.
So, what are the surrogacy laws in India?
- Commercial surrogacy is now illegal in India
- The law only allows altruistic surrogacy for needy, infertile Indian couples
- Intended parents have to be married for five years
- Parents should have a doctor’s certificate of their infertility
- Surrogate mothers should have a proper certificate from the appropriate authority
- Women can become surrogate only once. They have to be a close relative of the intended parents
- Surrogate mothers should also be married and have a biological child
- Single parents, homosexuals and live-in couples cannot have children from surrogacy
- Couples who already have children, cannot have more children via the surrogacy process in India. They can adopt under a different law.
But, why is commercial surrogacy illegal in India?
There is no exact reason why commercial surrogacy is no longer legal for couples. But we can identify some reasons that may have led to this ban. When surrogacy in India first became a booming industry, there were no rules and regulations in place. As a result, several unsafe and unethical practices emerged.
The women who became surrogates in India during this period were subjected to unscrupulous treatment, poor living conditions, and exploitation. Indian surrogacy agencies began running “baby factories,” when demand from foreign parents increased. Indian surrogate mothers were forced to live there until they gave birth to the intended parents’ babies. They usually received no assistance for the family they had left behind while being pregnant.
Additionally, the surrogates in India only got a fraction of the expenses that intended parents paid the surrogacy agency. Agencies used to charge double leading to surrogate exploitation. Surrogates were often poor and uneducated so they participated in the surrogacy process multiple times. This resulted in them becoming “baby machines”.
When stories of surrogate exploitation became more common, the Indian government introduced measures to make the process safer for all the parties involved. Regrettably, these laws resulted in a prohibitive process that has made the surrogacy process more difficult or completely impossible, rather than safer.
Commercial surrogacy can be successful if proper rules and regulations are in place. The current surrogacy laws are discriminatory towards single and homosexual parents. Commercial surrogacy helps parents who are unable to have children. Also, surrogates will have access to licensed and qualified medical professionals. Thus, the Indian Government should abolish existing arbitrary laws and legalize the commercial surrogacy process in India.