The surrogate baby boom is all set to go bust. India has decided to close the door on foreign couples, who were permitted by the Union Home Ministry to legally have a child through a surrogate mother. Further, the surrogacy norms for Indians have also been tightened.
Putting restriction on foreigners (both single and married couples) to enter into surrogacy agreements with “surrogate mothers” in India, the Government at an inter-Ministerial meeting held by consensus that till such time the Assisted Reproductive Technology (Regulation) Bill 2013 was passed by Parliament, surrogacy “should be limited to infertile Indian married couples only and not to individual(s).” Gay couples and live-in couples are already proposed to be excluded in the Bill.
Barring surrogacy for foreigners, the minutes of the meeting held on March 6, 2014, a copy of which is available with The Pioneer, stated, “Surrogacy in India should not be allowed to a foreigner unless he/she is married to an Indian citizen.”
However, this decision will not affect the right of foreign couples to adopt children in India under the Guardians and Wards Act, nor will the decision of the inter-Ministerial meeting apply to NRIs, persons of Indian origin (PIO) and overseas citizens of India (OCI). The reason it gave was “to prevent exploitation of Indian women who may be tempted to take the risk in the face of financial hardships.”
At present, there are 207 registered ART clinics while thousands operate discreetly. India is a hub for commercial surrogacy. Due to the low costs, foreigners flock regularly in search of fertility clinics and ART banks. Moreover, the Supreme Court gave a legal stamp on commercial surrogacy by allowing foreigners to leave the country with their surrogate children. In 2008, in ‘Baby Manji Yamada case’, court allowed a surrogate baby to be taken to Japan with her grandmother. A year later, a German couple (UoI v Jan Balaz) was allowed to return with their surrogate twins after the court intervened and provided them exit permits.
The Government has also decided that for a woman to be a surrogate mother she should be aged between 23 and 35 years; should be married; and has at least one live child aged three years or above. Further, she can be surrogate only once in her lifetime. Earlier, the proposal under the Bill fixed a minimum age of 21 years with no requirement of being married. Certain Ministries recommended increasing of the minimum age to 25, which the committee unanimously rejected.
The ART Bill, which was prepared in 2010, could not be tabled in Parliament due to divergent views of various Ministries on certain contentious issues. Top officials of Health Ministry, Home Ministry, Personnel and Training, ICMR and Planning Commission converged to thrash out the differences and evolve a common approach on surrogacy.
This also became urgent as the Government got the stick from the Punjab and Haryana High Court recently in a case filed by a foreign singleton where the Heath, Home and law Ministries differed in Court, making a mockery of jointly representing the Union of India.
With the differences being settled, Secretary, Health Research VM Katoch, who is also the DG, ICMR has informed the Planning Commission that the conclusions of the inter-Ministerial meeting will be incorporated into the draft ART Bill and sent to law Ministry for vetting. After this exercise is completed, the new Bill will go to the Cabinet for the new Government in place to decide on tabling it in Parliament.
The agenda for the March 6 meeting also addressed other key contentious issues like covering the risks for mothers and children who form part of such surrogate arrangements.