India moves to ban surrogacy for foreign couples

The Indian government released an official letter to fertility clinics last week that bans them from contracting surrogates to foreigners.

Though the Bombay High Court in Mumbai delayed the order to avoid complications with surrogacy arrangements already underway, some clinics agreed not to take on any new clients. The court imposed a Dec. 15 deadline for the government’s response, The Wall Street Journal reported.

India legalized commercial surrogacy in 2002. It has since grown into a booming part of the Indian economy, bringing an estimated $500 million to $2.3 billion in revenue annually. India’s government has worked since 2012 to regulate the practice, which continues to raise ethical eyebrows.

Jayashree Wad, a lawyer presenting a public interest case to India’s Supreme Court to ban Indian surrogacy for foreigners, told The Wall Street Journal the practice exploits illiterate and impoverished women: “The IVF centers might be informing them about everything, but how much do they understand? That we don’t know, and that nobody knows.”

The letter to clinics, released by the governmental Indian Council of Medical Research (ICMR), adds to restrictions already passed in 2012. That year, India limited surrogacy contracts to heterosexual couples married for more than two years and living in countries where surrogacy is legal, a decision that pushed some couples to seek surrogates in other countries like Mexico.

The new directive follows the release of draft legislation in India’s parliament that would also prohibit foreigners, except for those with Indian ancestry, from contracting with an Indian surrogate.

Indian surrogates attracted foreign interest due to low costs and few regulations, until now. Compared to gestational surrogacy arrangements in the United States, which can cost about $150,000, hiring a surrogate in India is relatively cheap at only around $30,000.

Two days after ICMR released the directive, the U.S. Embassy in New Delhi warned Americans seeking surrogacy services in India to exercise caution.

As India seeks to tighten restrictions, other countries have already made the practice illegal. Europe has outlawed surrogacy completely while other nations only allow surrogate compensation for medical expenses. Thailand’s popularity as a surrogacy hub drew international attention in 2014 after an Australian couple abandoned a twin sibling with Down syndrome to the surrogate’s care. Thailand passed a law this year banning commercial surrogacy.

In a filing released to the Supreme Court last week, India’s government also said it “does not support commercial surrogacy” and that “adequate provisions will be made in the enactment to prohibit and penalize commercial surrogacy services.”

In the United States, surrogacy’s legal status varies from state to state. Only the District of Columbia and New York have imposed surrogacy bans, though legislative bodies in both states are considering laws that would loosen them. A few states, including New Jersey, limit surrogacy to altruistic arrangements. Many don’t address surrogacy at all.

“Here in the U.S., the practice goes unabated with virtually no government oversight,” said Jennifer Lahl, president of the Center for Bioethics and Culture. “This is a huge step forward for exploited women in India, but it’s still open season on poor American moms having nothing to sell but their wombs.”

In India, surrogacy proponents like Rita Bakshi, founder of the International Fertility Center in New Delhi, worry parents who can only afford India surrogacy prices will suffer due to the new regulations, The Wall Street Journal reported. Others called the new regulations a quick reaction to a few public cases of surrogacy-gone-wrong.