Indian surrogacy: draft law finalised to bring in regulation

For the first time, The Indian Government has finalised draft legislation to regulate the rapidly expanding Indian surrogacy sector.  At present, there are no surrogacy laws in India and surrogacy is neither legal nor illegal.  It is understood that the Indian Government is moving quickly to introduce legal regulation and The Assisted Reproductive Technology Regulation (ART) Bill is due to come before the Winter Session of the Indian Government.

There are currently believed to be around one thousand fertility clinics in India, although the actual number is unclear as there is no official supervisory body.  It is estimated that there were approximately two thousand surrogate births in India last year, with around half of these believed to have been born to British intended parents.  Indian authorities now believe the Indian surrogacy sector is worth as much as £1.5 billion each year and that it continues to grow rapidly and needs regulation.

The Bill seeks to ban foreign intended parents from entering into a surrogacy arrangement in India if surrogacy in prohibited in their homeland (which will catch many European nationals).  It also requires foreign intended parents to provide an undertaking that their surrogate born child will be entitled to foreign citizenship from their home country.  This is designed to stop the birth of surrogate born children in India who are stateless (since they are not currently recognized as Indian citizens) and who cannot then navigate a safe legal path home with their intended parents.

The Bill also requires foreign intended parents to retain a local guardian to support the surrogate in their absence.  If the intended parents do not assume care of the child after the birth, the child will then be granted Indian citizenship and the guardian will then be able to arrange his/her adoption in India.  This is designed to stop cases where surrogate born children have been born legally parentless in India due to an international conflict of law and intended parents have either struggled to get home safely with their child or they abandoned the child altogether.

The Bill also restricts surrogate mothers to those aged 21 to 35 years, with a cap of five successful live births in her lifetime including the births of her own children. Overall, the Bill’s aim is to support the rights of surrogate born children, surrogate mothers and intended parents and bring about legal regulation with criminal sanctions for those who breach the law. This demonstrates once again that surrogacy law and practice remains a fast moving area and this is something to watch in the months ahead as we wait to see what the end result will be.

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