Change Ahead for Surrogacy In India?

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 economicsSometimes 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.

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3 responses to “Change Ahead for Surrogacy In India?

  1. marilynn huff

    it needs to be seen as renting a womb, then the act is not immoral – the woman that gives birth is not selling her child she is not the childs mother she did not conceive the child she did not reproduce to create the child. She hosted the other womans pregnancy for her – she will give birth to another woman’s baby for her. The world must stop assigning the title of mother to women based on the act of giving birth. The woman that conceived the child is an expectant mother until that child is born – she does not necessarily need to be the one who bears the child she simply needs to conceive it. This would make taking a baby home from india a real piece of Cake for fertility tourists. I understand that my opinion is bound to piss off all the women who are buying eggs and having them fertilized in order to give birth to their husband’s babies but they would still get to do that only they’d have to go on the record with it. Its really time the courts stopped assigning motherhood to the wife of the guy with the checkbook. You know?

  2. A thought just occurred to me, that surrogacy is not like renting a womb, but is more like being an adoptive or at the very least, a foster parent.

    I do not suggest that this concept be used legally, because I agree with whoever said that life for all legal purposes should begin at birth.

    However it may resonate more psychologically. as it acknowledges the unique mothering nature of gestation and birth without denying genetics.

    Our psychology still has a few generations to catch up with technology I believe, in that we shall continue for a long while to equate birth with genetic motherhood for quite some time still.

  3. Majority of surrogacies are traditional and there is a serious problem that these women don’t known what they’re going through and are not counselled about it. (93% in India and 63% in the U.S.)

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