Surrogacy in India with reference to cross-border marriages

Author: Ms. chiraaksha Karla, GGSIPU

These cross-border marriages are into discussion always for the fact that whether they should be promoted or not, due to both legal and ethical issues that would arise. And then, on the other hand, people have a mindset that they most probably won’t survive, especially when the members are purely alien with the new foreign member in the family. When I search for trends in these cross-border marriages in India, I get nothing about it. So is that people in India are not up for them?

Well, that’s not true!

The relationships of our Bollywood celebrities are always in the news for the Indian media, and they nevertheless celebrate it with utmost importance. Irrespective of the professions actually, there are several cricketers, politicians, film actors, models, etc. that made into news after they were into these relationships, but they didn’t care. There are many famous Indians who actually went forward and married foreigners!

The most controversial and heated cross-border marriages are the ones between the Indians and Pakistanis. Hence, we see cross-border marriages often lead to family members or natives of their respective nations against it, or not appreciating them. These can lead to cultural issues or maybe even issues in finding a surrogate. While on the other hand, cross-border surrogacy just like surrogacy tourism has many issues surrounding it’s baby’s nationality, surrogate’s laws, etc.

It is said that commercial surrogacy in India is on a boom, and almost 50% is surrogacy tourism being noticed. That means couples come to India, from overseas or many foreigners just for surrogacy. Hence, a cross-border couple can go for surrogacy in India, if the couple suffers infertility. In fact, there have been couples who went for it. But there are also legal issues which can arise with it if the particular country’s laws are not in line with Indian laws. For example, if surrogacy is banned where the couple is actually dwelling!

There are certain issues in cross-border marriages like one of the spouses needs to change their citizenship, learning to live with the new culture where norms and assumptions may vary greatly, and finally also the language differences. The same social issues will be also suffered by the new child that will be born. Besides social issues, there are also going to be legal issues that will be more complex.

Surrogacy in India is hugely boomed, as there have been an estimated 3,000 fertility clinics in India. Surrogacy is an agreement or a method where a female agrees to carry a pregnancy for some another person or persons, who will become the new parents of the newborn child after the birth of him or her. Both the traditional and gestational type of surrogacy has been known to be equally safe provided that the surrogate mother undergoes a thorough health screening. The traditional surrogacy is also known as the genetic, straight or partial, which is also the less common and less costly form. Where on the other hand, gestational is the more popular and effective method. The gestational surrogacy is also known as the full or host surrogacy.

The surrogacy agreement is also to ensure, that the surrogate mother receives nutritional, medical and overall health care through them, since the start of commercial surrogacy in India in 2002.

Laws of both countries, that are both India and where the couple is dwelling must be at par so that the process of surrogacy can be harmonized. Countries like Germany, Italy, and England do not recognize the validity of these surrogacy contracts. This will create the most complex legal issue, the expected one, that there will be a hurdle in taking back the child to the parents’ country.

But on the other hand, if this cross-border marriage couple dwells in India, then they can absolutely go for surrogacy in India!

Since the time when there had been a major legal issue regarding international surrogacy citizenship, the need for the legislation in the surrogacy industry has been felt.

The legislation in the year 2008 had drafted the Assisted Reproductive Technique Bill (ART), which is yet to be tabled. This bill checks on many of the problems surrounding surrogacy and seeks to mitigate them through legislation.

The 228th law commission of India in the year 2009 had added some more suggestions to the bill.

The ART bill of the year 2013 has been pending and looks forward to indirectly and ultimately ban surrogacy in India, as surrogacy will only be allowed in altruistic form by a relation in family. And therefore there will be no monetary benefits for it.

So basically after this, surrogacy will completely disappear from India.

This expected disappearance also arises a hope that at least, the estimated 50,000 ( till the year 2016) orphans kids in India will be adopted. Why go for at least surrogacy, when you can adopt.