Surrogacy not for married couples only: Draft law

June 21, 2010
Single men, women and even gays and lesbians could soon get the legal sanction to have children using surrogate mothers.


The draft Bill legalising surrogacy in India — the Assisted Reproductive Technology (ART) [Regulation] Bill 2010 — has provided for single parenthood by allowing “unmarried couples” and “single persons” from India and abroad to have children using ART procedure and surrogate mothers.

The Bill, with potential to rewrite the social landscape, may be tabled in the monsoon session of Parliament if the Union Cabinet clears it. By conferring the right to have children on unmarried couples and single persons, the Bill attempts to achieve several historic feats — legalising commercial surrogacy, single parenthood, live-in relationships and entitling even gays and lesbians to start families using surrogate mothers — at one go.

“Along with the term single persons, the path is open for gays and lesbians to use ART procedure,” said senior advocate Rajiv Dhavan, who played a crucial role in drafting the Bill along with his colleagues at Public Interest Legal Support and Research Centre. “The expression ‘unmarried couples’ generally suggests heterosexual relationships. But its interpretation has been left open.”

By conferring the right to have children on unmarried couples and single persons, the Bill attempts to achieve several historic feats — legalising commercial surrogacy, single parenthood, live-in relationships and entitling even gays and lesbians to start families using surrogate mothers — at one go.

Asked if such a legislation would conform to traditional Indian values, Dhavan said, “This Bill does not provoke a moral attack on the institution of family. Married persons will mostly use it. But the option to create family will also be available to all others.”

Renting of womb is legal in India but there is no law to regulate surrogacy.

A 2009 Law Commission report had described ART industry as “a Rs 25,000-crore pot of gold”. “Wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers,” the report had stated.

The commission had recommended legalising only altruistic surrogacy arrangements and not commercial ones. But the draft Bill legalises commercial surrogacy as well.

Clause 34(3) of the draft Bill specifically says that apart from all expenses involved, “the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.”

She will have to relinquish all parental rights over the child in favour of commissioning parent/s. Only a woman in the age-group of 21-35 can become a surrogate mother but she can not bear more than five children including her own.

In view of the recent controversy involving a German couple’s child born to a surrogate mother in India, the Bill makes it mandatory for foreigners to submit certificates on their country’s policy on surrogacy and that the child born to an Indian surrogate mother will get entry into the commissioning parent/s’ country.

The Bill proposes to set up a mechanism to regulate and supervise surrogacy in India.