Commercial surrogacy in India

Commercial surrogacy in India is legal.^[1] The availability of medical infrastructure and potential surrogates, combined with international demand, has fueled the growth of the industry.^[2] Surrogate mothers receive medical, nutritional and overall health care through surrogacy agreements.^[3][4]

Law

India does not yet have a legislation controlling surrogacy.

Manji's case

BABY MANJI YAMADA v. UNION OF INDIA & ANR. [2008] INSC 1656 (29 September 2008)

Balaz v. 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. ^[5] The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.

Because India does not offer dual citizenship,^[6] the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship.^[7]

The case is still pending on appeal before the Supreme Court of India. Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities.^[8]

Indian Council for Medical Research guidelines

The Indian Council for Medical Research has given Guidelines in the year 2005 regulating 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:

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear 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.
2. A surrogacy arrangement should provide for financial support for 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.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4. 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.
5. Legislation itself should recognize 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.
6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother should be protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

See also

• Fertility tourism
• Medical tourism in India
• Surrogacy

References

1. ^ The Associated Press (2007-12-30). "India's surrogate mother business raises questions of global ethics". Daily News. http://www.nydailynews.com/news/us_world/2007/12/30/2007-12-30_indias_surrogate_mother_business_raises_-2.html?page=0. Retrieved 2008-07-14. 
2. ^ "India's baby farm". The Sun-Herald. 2008-01-06. http://www.smh.com.au/news/world/indias-baby-farm/2008/01/05/1198950126650.html. Retrieved 2008-01-06. , Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions; Monday, December 31, 2007; The Associated Press; CBC News; Canadian Broadcasting Corporation, "Business is booming for India commercial surrogacy program" by Associated Press, Dated: Monday, December 31, 2007; The Albuquerque Tribune, NM, USA, Paid surrogacy driven underground in Canada: CBC report; Wednesday, May 2, 2007; CBC News; Canadian Broadcasting Corporation
3. ^ Regulators eye India's surrogacy sector; By Shilpa Kannan; 18 March 2009; India Business Report, BBC World
4. ^ Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions; Monday, December 31, 2007; The Associated Press; CBC News; Canadian Broadcasting Corporation
5. ^ HC confers Indian citizenship on twins fathered through surrogacy; Express News Service; Nov 12, 2009; Ahmedabad; Indian Express Newspaper
6. ^ OCI just a recognition of Indian roots: Vayalar; by Rema Nagarajan, TNN; 29 September 2006; The Times of India
7. ^ Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website, Diaspora Services: Overseas Citizenship of India Scheme; The Ministry of Overseas Indian Affairs (MOIA), Government of India website, What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI? Overseas Indian Facilitation Centre, a not for profit public private initiative of Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry (CII), was launched on 28th May 2007; Official Government of India portal
8. ^ http://blog.indiansurrogacylaw.com