Indian parliament seeks to ban birth surrogacy for foreigners

The Indian government says it wants to prevent Indian women from becoming surrogate birth mothers for foreigners, according to an affidavit filed yesterday with the supreme court. The filing represented the latest development in a recent push to regulate an industry that has been booming in India. Estimates of the size of the surrogacy trade in India vary, with one study by Sama, an advocacy group in New Delhi, measuring it at more than €365 million.

Critics say that foreigners can find surrogates in India relatively easily, especially among impoverished women, and that this creates great potential for exploitation. Some experts, however, are concerned that banning surrogacy for foreigners would do more harm than good.

“Our apprehension and fear is that the whole business will go underground,” said Manasi Mishra, who heads the research division at the New Delhi-based Centre for Social Research, an organisation that has published studies on surrogacy in India. “The bargaining capacity of the surrogate mother will further go down.”

In the affidavit, the department of health research of the ministry of health and family welfare said, “The government of India does not support commercial surrogacy.” It also said that surrogacy should be available “to Indian married infertile couples only and not to foreigners”.

The new restrictions sought by the government would require approval of parliament. The draft of a Bill posted online mentions that foreigners would be excluded from the practice, but it allows exceptions for foreign passport holders of Indian origin and foreigners married to Indians. The affidavit does not mention these exceptions. The Bill will be open to public comment until November 15th.

India has long tried to get approval of legislation to standardise surrogacy, which is run through thousands of clinics throughout the country. The cost of surrogacy in India can be a third of the cost in wealthier countries. In an interview with the New York Times in 2008, an Israeli couple said the cost of their surrogacy in India had been about $30,000, of which about $7,500 went to the surrogate mother. Stories of abuses by foreign couples in India have weighed heavily on the national debate about surrogacy, including reports of an Australian couple having left a twin in India, said Mishra. Jayshree Wad, a lawyer who filed a petition in the supreme court to ban commercial surrogacy, said the practice had harmed India's image abroad. "There is a common opinion about India which hurts very badly – that because there is poverty they sacrifice their womb by renting it for their family," she said.

While she welcomed the affidavit, she noted that a Bill that would regulate surrogacy has been pending since 2008. “As a lawyer, I need some law – not only saying ‘I will do this and I will do that’,” she said. “So let them put it before the parliament – then we will see.” – (New York Times service)