Surrogacy in India: not an option for gay and lesbian couples

NEW DELHI: Gay and lesbian couples, Indian or foreign, can't have children born with the help of an Indian surrogate mother.

According to the draft `Assisted Reproductive Technology Regulation Bill 2010' prepared by a 12-member committee headed by Dr P M Bhargava under the Indian Council of Medical Research (ICMR), which was submitted to the health ministry recently, till gay and lesbian relationships are legalised in India, gay couples would not be allowed to have children through a surrogate.

Ministry officials told TOI that India was seeing a growing number of male couples from foreign countries hiring surrogates to bear children. This is mainly because assisted reproductive technology (ART) is not regulated here at present.

"However, once this bill is endorsed by the law ministry and becomes an Act, such couples will not be allowed to have surrogate children in India," said member secretary of the committee Dr R S Sharma.

According to Dr Sharma, under present laws, the definition of a couple is "persons living together and having a sexual relation that is legal in India".

"But though homosexuality has been decriminalised in India, it has not been made legal. Till gay and lesbian couples get legal status in India, they can't avail surrogacy," Dr Sharma said.

Some time back, a gay Israeli was prevented by a Jerusalem judge from taking his twins, born with the help of a surrogate mother in Mumbai, back to his home town.

The draft bill also says that foreigners or NRIs coming to India to rent a womb will have to submit two documents -- one confirming that their country of residence recognises surrogacy as legal and second that it will give citizenship to the child born through the agreement from an Indian mother.

As reported by TOI earlier, the draft bill also includes a provision which says that foreign couple will have to identify a local guardian in India to take care of the surrogate mother during her gestation period as well as after the delivery, till the child is handed over to the commissioning parents. However, if the foreign parents fail to take delivery of the child born to the surrogate mother within one month of the child's birth, the surrogate mother and the local guardian will be legally obliged to hand over the child to an adoption agency.

Only in such a case will the baby get an Indian citizenship, says the bill.

So what makes India an attractive destination for surrogacy? Experts cite two reasons. In the US, surrogacy costs up to $120,000 while in India, couples pay only a fourth or so of that amount. Having a child could cost anything between Rs 10 lakh and Rs 25 lakh here. The second reason is lack of regulation of the ART sector making India an easy place to have a surrogate baby.

The Law Commission, however, strongly pitched for legalising surrogacy in India last year and recommended several steps to protect the interests of the surrogate mother and also the baby.

In its 228th report submitted to law minister Veerappa Moily, the commission recommended banning of sex-selective surrogacy, financial support for surrogate child in the event of death of commissioning parents or unwillingness to take the child later and providing life insurance cover for surrogate mother.