India is to ban gay couples from using surrogate mothers. As part of reforms to the country’s surrogacy and fertility treatment laws, only heterosexual couples will be allowed to have children by surrogate.
The Assisted Reproductive Technologies (ART) Regulation Bill 2010 was sent to the law ministry for approval this week. There is apparently nothing in the bill to stop a single gay man from having a surrogate baby, as single men and women will be eligible.
Married and unmarried straight couples who live together will also be permitted to use surrogate mothers. However, women must be able to prove that they cannot have a baby naturally. According to the Evening Standard, a senior Indian official said: “We have to look after the interests of our own citizens as well as handle the tricky matter of the sensitivities of these couples who have not been able to have children in the normal way.
“But above all, we have acted to put some kind of hold on the whole surrogacy issue by banning homosexual couples from coming to India to enter into such deals. India is one of the top destinations for gay and straight couples seeking a surrogate child as it is far more cost-effective than other countries.
In the UK, single people cannot gain full legal rights over their children born by surrogate mother – a problem which affects gay single men in particular. Parental orders are used to extinguish the rights of a biological mother and her husband or partner. However, these can only be granted to couples.
India’s emergence as a surrogacy hotspot has prompted authorities to clamp down on unscrupulous practices, such as the persuading of impoverished women to rent out their wombs. This month, media attention focused on a Spanish gay couple who had twin girls born to a surrogate mother.
The Delhi Commission for Protection of Child Rights ordered the clinic involved to explain its procedures and suggested that the transaction had not been legal. Chariman of the commission Amod Kanth said: “As the Indian laws are yet to approve of a gay marital relationship, the commission shows its grave concern over the issue as to whether the gay foreigner couple have the legal status to assign such surrogacy or having the legal status of adopting parents or otherwise.”
The bill states that surrogate mothers must be aged between 21 and 35 and cannot give birth more than five times, even if this includes their own children. Would-be parents will be prosecuted if they refuse to accept a baby with birth defects and foreign couples or individuals will have to appoint a local guardian to care for the baby until handed over to them.
Using a surrogate mother in India costs around a fifth of the price of an American surrogate, making the country an attractive option for those interested in the process. While an American surrogacy costs around $70,000, Indian surrogacy costs around $12,000. This is a huge sum in India – equivalent to ten years’ average salary.
Another provision in the bill says foreign prospective parents must have obtained citizenship for their children before bringing them home. Critics say this will be a stumbling block for many would-be parents.
Last year, an Israeli gay man was stranded in India for two months with his twin sons because Israel’s Ministry of the Interior refused to issue a paternity test, which is required for the recognition of all children born abroad.
Read more about surrogacy for gay couples