But if the draft bill to regulate surrogacy becomes law, gay couples like them may not be allowed to hire surrogates in India. The draft legislation, Assisted Reproductive Technology (Regulation) Bills and Rules, 2008, states that only couples that are living together and in a sexual relationship that is “legal” are permitted surrogacy to have children.
In July 2009, the Delhi High Court had decriminalised homosexuality by overturning a section 377 of the Indian Penal Code. But homosexual relationships are still not legally recognised in India, leaving the status of same-sex relationships ambiguous.
Several petitions filed to challenge the Delhi High Court verdict are pending before the Supreme Court. “Gay or lesbian couples will be allowed to have children through surrogacy only if the Indian law recognises homosexual relationships at the time when the bill is passed,” said Dr R.S. Sharma, deputy director general of the Indian Council for Medical Research. Considering India has emerged as preferred destination for surrogacy, the proposed law could dishearten gay couples who plan to come to India for children. Infertility clinics in Mumbai have helped many gay couples, mostly from US and Australia, have children through surrogates.
It is not clear whether homosexuals will be able to go for surrogacy as individuals. The proposed legislation allows single women to have children through surrogacy but they are silent about single men. “It will be important for the new law to address the issue about single parents and defining the role of doctors and compensation given to surrogates,” said Amit Karkhanis, a lawyer who has handled over 180 surrogacy cases.
An expert committee is revising the draft bill based on the comments by the central health ministry. “We will complete the process within a week and send the draft back to the ministry,” said Dr Sharma.