Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: Another Country Closing Its Doors to Surrogacy – India Edition

Is it possible to respond to the legitimate concerns of exploitation without enacting draconian legislation?

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Indian flag flag of IndiaSurrogacy has helped thousands of individuals and couples realize their dreams of parenthood. But it is rarely the good stories that make the news. Instead, it is the horror stories. Twins being separated, competing parental claims being lodged, and the subsequent legal messes — that’s what we hear about most often. Sometimes, we even hear about a child nearly being without legal parents. Unfortunately, I’m here to bring another sad story to the situation. (Sorry to be a Debbie Downer, folks.)

India’s Popularity. Over the last few decades, India has become a global destination for surrogacy. For many, India has presented a more affordable path to parenthood, with surrogacy costs around $40,000. By contrast, in countries like the United States, the cost can reach six figures. With around 2,000 surrogacy clinics in India, experts have placed various estimates on the value of the country’s vast surrogacy industry, ranging from $400 million to several billion.

Of course, as a popular surrogacy destination, India is no stranger to the stories of surrogacy arrangements gone bad. Opponents of the surrogacy industry point to myriad reports of women being exploited; matchmakers locate women in slums, offer them large sums of money, but never pay what was promised. These incidents, if true, are nothing less than horrifying.

The New Ban. In response to these reports, India recently instituted a temporary moratorium on foreign couples using an Indian surrogate. But now, India’s parliament is looking to go much further. It may pass a comprehensive and permanent surrogacy law that would all but ban the practice. If the legislation passes, no commercial (paid) surrogacy will be permitted, and no foreign couples (even non-resident Indians) could engage an Indian surrogate. No gay couples could use a surrogate. And no singles at all could use a surrogate, gay or straight.

The law would strictly limit surrogacy to childless heterosexual married couples who had been married for more than five years. But even then, they could use only a “close relative” as an unpaid surrogate. And the “close relative” must have had a child of her own, and may act as a surrogate only once in her lifetime.

The proposed surrogacy legislation has currently passed India’s cabinet (apparently that’s how legislation works in India!) and is expected to be considered by the parliament before the end of the year.

The Justification. Sushma Swaraj, India’s foreign minister and a prominent supporter of the bill, touts how the new law would stop foreigners and gay couples from exploiting Indian surrogates. She argues that there are too many instances of people abusing surrogacy and abandoning unwanted babies. She further justifies the ban on foreigners by explaining that “divorce is highly prevalent in foreign countries.” Swaraj may even think that the children of divorced couples become orphans. She stated — incorrectly, in every context I can think of — that after a divorce, “The child belongs to nobody. This is why we disallowed foreigners.”

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Why Not Regulation? Is it possible to respond to the legitimate concerns of exploitation without enacting draconian legislation? Tighter regulation would be a preferable solution to a near ban on surrogacy. The latter would destroy the hopes and dreams of potential parents. Indeed, even for those in the narrow category of (1) heterosexual (2) married couples (3) who have been married for five years and are suffering from infertility, the chances of having a (4) qualifying (5) close relative willing to undergo a surrogacy arrangement for (6) no compensation seem rather slim.

On the other hand, potential alternatives include reasonable measures designed to protect children and ensure that surrogates are not exploited. For instance, a law that required every contract for surrogacy to be in writing, with the payment placed in the hands of a third party, could address much of the concern over exploitation. Similarly, laws that require intended parents to put down a significant “deposit” when using a surrogate—to be used for support in the case of an abandoned child—would address other concerns.

And naturally, India’s public officials should be educated about the fact that the children of divorced parents do not become orphans in any country, and that gays are no more likely to abandon babies than are straight individuals.

However, if India does pass this legislation, other countries will likely take India’s place as the go-to surrogacy destination. The United States and the Ukraine—where the surrogacy market is growing and only slightly more expensive than in India—can expect to see more international couples turn to them for help in achieving their dreams of a child.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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