Realizing the pivotal role played by laws, the Union Ministry has recently issued strict guidelines in order to govern the laws pertaining to commercial surrogacy in India. No longer can gay couples and single foreigners fulfill their parenthood dreams through the option of surrogacy in India. The process of commercial surrogacy in India is restricted only to a foreign "man and woman" who have been married for a period of at least two years. It was noticed by the Union Ministry of Home Affairs (“the Ministry”) that a number of foreign nationals visited India for surrogacy on tourist visas, which was considered inappropriate. To restrict any such future occurrences, the Ministry issued a circular to all Indian Embassies abroad in July 2012, stating that foreign nationals would be eligible to enter India only on "Medical" visas and only upon fulfillment of certain criteria.
Taking this into consideration, a number of conditions must be met by the foreign nationals in order to obtain a visa for surrogacy. All foreign couples will now need to furnish a letter from their country's Foreign Ministry or Embassy in India certifying that their country recognizes surrogacy. This letter must also contain an assurance that the child or children who would be born to the Indian surrogate mother would be allowed to enter India as a biological child of the couple. This point, in particular, holds greater significance as it has been seen in the recent past that children born out of cross-border surrogacy have been trapped in legal tangles between their home country and India.
A few months back, the Indian Council of Medical Research (ICMR) guidelines reached out to fertility clinics encouraging such clinics to apply for registration. Also set out under the Ministry's guidelines is that treatment of foreign nationals should be undertaken only at registered Assisted Reproductive Technology (ART) clinics recognized by the ICMR.
Surrogacy in India has been largely unregulated in the past. Although India has opened its shores for commercial surrogacy, it’s high time the laws are made more stringent in order to regulate the practice of surrogacy.
Authored by Poorvi Chothani, Managing Partner, LawQuest in cooperation with Baker & McKenzie