Since 2002, surrogate motherhood was a permitted fertility treatment in India for both residents and non-residents. However, the Law was amended back in 2015, when the Indian Government determined that, in the case of foreign citizens, only heterosexual couples whose country allowed surrogacy had the right to have a baby via surrogacy in India.
From the 21st of November 2016 onwards, when the Surrogacy (Regulation) Bill, 2016 was passed, only Indian married couples with infertility problems were allowed to access altruistic or unpaid surrogacy. In other words, commercial surrogacy is not permitted in India anymore.
The different sections of this article have been assembled into the following table of contents.
India as a surrogacy destination
During the past decade, and particularly back in 2012, India was considered the surrogacy capital of the world. In fact, according to data published by the Confederation of Indian Industry (CII), the surrogacy "market" rose to about 2.3 thousand million dollars during that period.
Some of the main reasons why non-residentes saw India as the ideal destination country for surrogacy abroad were associated with:
- The price, five times cheaper than in the United States.
- The easy access to the process, as intended parents were deemed the rightful parents straight away after childbirth.
Today, the Indian Law doesn't allow access for foreign citizens anymore, access is granted to indian spouses with fertility problems, only.
In other words, the passing of the new law translated into new regulations that banned foreign couples to pursue surrogacy in India. Continue reading to learn everything you should know about these new legal restrictions.
Passing of the new law
Current policies governing surrogacy in India ban surrogacy to non-residents who intend to start a surrogacy arrangement by entering the country as tourists.
Until the last modification in 2016, foreign intended parents had to apply for a specific medical VISA to India that was only granted to heterosexual couples who had been married to each other for at least 2 years, along with the following documents:
- An affidavit confirming that commissioning parents will take care of the child or children born as a result of the surrogacy arrangement.
- A legal contract between the commissioning parents and the Indian surrogate.
- Proof that the process has been performed at a licensed clinic.
- A letter confirming that the total compensation to the gestational surrogate has been paid in full, as accorded by contract.
The Indian Government introduced a bill to amend the previous surrogacy law in October 2015 with the purpose of prohibiting surrogacy to foreign citizens in the country, in an attempt to stop the massive incoming of fertility tourists looking for a woman to carry their child. The bill was passed the 21st of November 2016 under the name Surrogacy (Regulation) Bill, 2016.
Since 2015, it is a requirement for non-residents to have a letter from their home country's Embassy confirming that surrogacy is allowed in their home country as well.
Legal implications of new legislation
After the implementation of this new law, only persons who meet the following conditions may resort to surrogacy:
- Indian citizens residing in India or foreigner married to an Indian citizen.
- Heterosexual married couples with fertility problems.
- Having been married for at least 5 years.
Only altruistic or unpaid surrogacy is allowed. Moreover, the surrogate must be a close family member.
The Prime Minister of India, Narendra Modi, is totally opposed to commercial surrogacy, especially if it becomes a business based in the exploitation of women. This is the reason why the new law came into forc.
The ultimate goal of the Surrogacy (Regulation) Billis to stop India from becoming the "headquarters" of the global surrogacy market, and to erradicate the so-called Indian baby farms. Other countries in a similar situation, such as Thailand, have made amendments to their surrogacy law in order to stop this phenomenon as well.
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Becoming a surrogate in India
The new law affects the requirements for women willing to become surrogates in India, too. Now, for a woman to be allowed to apply for becoming a surrogate, she must have consent from her husband. In other words, becoming a surrogate depends ultimately on the decision of the male partner.
The following are some basic conditions to become a surrogate in India:
- Aged 35 or less
- At least one own child
- Once the contract is signed, she won't have the right to stop the pregnancy voluntarily anymore (except under exceptional circumstances)
Moreover, in order to prevent the development of an emotional bond, surrogate and intended parents cannot get to know each other or build a relationship. Traditional surrogacy is not permitted as well.
Indian surrogate mothers typically live near the location of the clinic and are required to get some time off work to focus on taking care of the surrogate pregnancy and their family.
In the past, Indian gestational carriers wer paid high sums of money for carrying someone else's child to term in a country where a large proportion of people are living in poverty. This was the reason why women decided to become surrogates—many got enough money as to sustain their whole family.
This is precisely the reason why the surrogacy law needed an amendment. Now, commercial surrogacy is not permitted anymore, which means that surrogates won't receive financial benefits for carrying a child for other people. As a matter of fact, she must be a family member.
Cost of surrogacy
The approximate cost of surrogacy in India ranged between $20,000 and $30,000. As one shall see, it was far less expensive than in California (from $120,000) and Utah (from $80,000), to give you some examples from the US. Internationally speaking, it was also cheaper than in countries like Canada, Russia or Ukraine.
Even though gestational carriers in India were paid a reduced part of the total cost (about $5,900-9,400), it was actually considered a high sum in the country, keeping in mind that a third part of the total population lives in poverty. In fact, some women who had been surrogates in the past state that they wouldn't have been able to sustain their family without this sum.
Those opposed to surrogacy consider that women who decide to become surrogates only because they are in need of income is ethically unacceptable, as it equals exploitation of women.
Further reading: International Surrogacy – Laws & Options for Surrogacy Abroad.
FAQs from users
Is single parent surrogacy legal in India?
No, it isn't, and the same applies to gay surrogacy. According to the law, only married heterosexual couples have the right to have a baby via surrogacy.
How much does a surrogate mother cost in Indian rupees?
The cost of surrogacy in Indian rupees is about Rs 3,000 per month and Rs 2 lakh after childbirth.
Why are foreigners not allowed to resort to India in order to become parents through surrogacy?
India is a country where most of its population lives in poverty, so the economic need of families, the vulnerability of surrogates and the emergence of the black market around this practice made the government see the need to strictly regulate the process.
Thus, the first measure taken was to restrict access to foreigners, who account for more than 70-80% of applicants for surrogacy in the country. Initially, surrogacy was allowed only for foreigners from a country that allowed it, but the new bill prohibits access for all foreigners.
Suggested for you
India is not a recommended destination country for surrogacy overseas anymore. To learn more about the steps involved in a surrogacy arrangements, read: Parents through Surrogacy Guide – The Process Step by Step.
We have made several references to altruistic and paid surrogacy throughout the article, but what's the difference between these types of surrogacy? To get more details about them, click here: What Are the Different Types of Surrogacy? – Names & Definition.
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