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Posted at: Oct 23, 2015, 1:03 AM; last updated: Oct 23, 2015, 12:59 AM (IST)

Draft Bill bars foreigners from hiring surrogates in India

Why the ban

  • Experts say the decision on banning foreigners from accessing infertility treatment in India is driven by interests of children born out of such arrangements
  • There have been instances of foreigner couples abandoning children born to Indian surrogates due to a range of issues, including disability or birth of twins
  • An Australian couple recently refused to accept a child with Down syndrome

Aditi Tandon

Tribune News Service

New Delhi, October 22

Foreigners won’t be allowed to hire surrogates in India according to the new draft Bill the government is finalising to monitor the unregulated infertility treatment market in India.

Departing from past thinking of permitting only married women to act as surrogates, the new Bill allows single women – divorced or widowed – also to rent wombs in the interest of equality of reproductive rights.

The Assisted Reproductive Technologies (ART) Regulation Bill, currently in the works in the Health Ministry, will for the first time in the history of infertility treatment in India, provide a legal framework for the Rs 25,000-crore strong market where exploitation of surrogates is common.

Under consultation for a decade, the Bill was first shaped by the previous UPA regime. The 2012 draft banned only those foreigners from hiring Indian surrogates whose own countries of origin didn’t recognise commercial surrogacy as Indian practices.

A majority of the European nations don’t permit surrogacy. Some such as the UK allow altruistic surrogacy where women rent wombs for a cause rather than money.

Further consultations on the pending Bill have led to fresh thinking that seeks a blanket ban on foreigners hiring surrogates in India and expansion of the definition of foreigners to include Non Resident Indians (NRIs), Persons of Indian Origin and Overseas Citizens of India.

Experts involved in drafting of the law say the decision on banning foreigners from accessing infertility treatment in India is driven by interests of children born out of such arrangements. There have been instances of foreigner couples abandoning children born to Indian surrogates due to a range of issues, including disability or birth of twins. An Australian couple recently refused to accept a child with Down syndrome.

Earlier in 2009, the Supreme Court had stayed a Gujarat High Court order granting Indian citizenship to twins born to a German couple from a surrogate based in Anand, the surrogacy hotspot of India.

Germany had then refused visas to these children as it doesn’t legalise surrogacy. India denied them citizenship for want of a law in this respect.

“While the ART regulation Bill is much needed, issues like who can act as a surrogate and who will be eligible as a prospective parent need careful consideration. Children’s rights are supreme,” says VM Katoch, former chief of the Indian Council for Medical Research which is drafting the Bill for the Health Ministry.

The ICMR has also rejected the Law Commission’s recommendation to ban commercial surrogacy in India citing the need for people to have families in a society where infertility can break down marriages.

The new Bill reflects this very thinking by permitting only Indian couples to hire surrogates to address the rising infertility burden at home. It also lays down provisions whereby prospective parents and surrogate mothers will enter into legally binding contracts to prevent either of the parties from reneging on their commitments. The Bill defines the surrogate as a woman aged 21 to 35 years and says she can have only five successful births in her reproductive life, including surrogates.

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