India’s proposed ban on commercial surrogacy is in line with a global trend restricting the service to altruistic purposes and for own citizens.
Once a hot destination for low-cost rent-a-womb services, Thailand banned commercial surrogacy for foreign couples in February last year following some high-profile cases including that of an Australian couple abandoning a baby with Down’s syndrome born to a Thai surrogate, but taking the healthy twin sister home.
In 2012, India had put a restriction on commercial surrogacy for foreign single parents and gay couples. It had also barred foreign heterosexual couples, married for less than two years from availing of the service.
This led to the moving of many Indian surrogates to neighbouring Nepal, where the law on commercial surrogacy is not clearly defined, especially with regard to foreigners.
However, the Nepal Supreme Court put an end to this practice in August last year. A month later, the Nepalese government decided to crack down after Israeli parents, including gays, took their surrogate-born babies with them, leaving the Indian mothers in the quake-hit nation.
Currently, there is an absolute ban on all forms of surrogacy in Germany, France, Italy, Spain, Portugal, Bulgaria and some states of the USA. In some parts of Australia, it is illegal for citizens to have a baby using a foreign surrogate mother.
Unlike the Hague Convention on Adoption, there is no internationally binding convention on surrogacy, leaving many surrogate children on the crossroads as they are not legally recognised by the commissioning parent’s country.
For example, surrogacy contracts are not enforceable in the UK, even if the parents have signed a deal with the surrogate mother. Also, the woman who gives birth is always treated as the legal mother under the UK law.
In India, there has been no specific law on surrogacy till date. But the commissioning mother is considered the legal parent of the surrogate child in accordance with the contract signed between the parties.
Canada, Belgium, UK, Denmark, Greece, Israel, Netherlands and some states in Australia allow altruistic surrogacy while commercial surrogacy is legal in Russia, Ukraine, the state of Tabasco in Mexico and some states of the USA—Arkansas, California, Massachusetts, Illinois, Texas.