As has been much discussed here and around the web, India is a popular destination for individuals and couples seeking to use a surrogate mother to have children. Sometimes the decision to go to India is driven by economics. Sometimes it’s motivated by inhospitable law in the home country of the commissioning parents.
The Indian law governing these arrangements has been less that clear. Coupled with uncertainty about law in the home country, this has created much legal confusion and there have been some notable instances in which this has lead to what can only be described as unfortunate results. Some are described here.
As the outsourced surrogacy or fertility tourism has become increasingly visible, it’s hardly surprising that India might consider legislation to regulate the practice of surrogacy. Of course, legal change comes slowly and apparently the draft moving forward now has been in the works for five years. I’m sure it is even more complicated because as India is now a global surrogacy center, all sorts of interests–those of prospective fertility tourists, those of people who stand to gain financially from continued surrogacy and so on–come into play in the legislative process.
It seems a bill is inching forward. It’s been in the works for five years. I have no idea how the Indian legislative process proceeds so I don’t know anything about likely timing or how probable it is that the draft law may be altered in the future. But the approach proposed is striking.
Rather than take its own position about surrogacy, India apparently plans to incorporate the view of whatever nation the individuals commissioning the surrogate happen to be from. Thus, a citizen of Germany coming to India to hire a surrogate brings with him/her German law. German law prohibits surrogacy and so the German citizen would not be allowed to hire a surrogate in India.
As I read the article, it seems that the burden will fall to the commissioning parent or parents to show that their country recognized surrogacy. I do foresee a lot of confusion here. For example, does the US recognize surrogacy? Certainly some states do. Others permit surrogacy but not compensation of surrogates–does that count as recognition? And in some states (and some countries) the answer isn’t completely clear.
As I understand it, someone in India (but I’m not sure who–a court? An administrator?) would have to determine what the law in the home country/state was. I don’t envy that person.
There’s something else here that I find slightly disturbing as well. The article refers to surrogacy as renting a womb. I don’t know if this reflects the view of the legislations, but this is a description of surrogacy I find quite disturbing. A womb is not really like the extra space in my garage. When a woman becomes a surrogate, she doesn’t simply clear out a little space for the tenant. She’s a full-scale wholly involved life-support system.
Consistent with this apparent dismissal of the surrogate’s role, the article does not mention any provisions in the law that might be designed to protect the surrogate herself. There was a story in Mother Jones not long ago that gives some sense of the range of circumstances under which women serve as surrogates in India. Whatever one thinks of surrogacy in general and globalized surrogacy in particular, surely it is clear that women engaged in the industry find themselves in widely varying situations. I’d expect any comprehensive legislation to spell out the rights of the surrogates and the conditions that can be placed on their employment.