Indian Law Dashes Surrogacy Hopes

by Peter Magee on March 7, 2013

Peter Magee

Until recently India has been an incredibly popular destination for Australian couples wishing to produce a child through surrogacy. It has a thriving surrogacy industry, so much so that the Australian High Commission in India has published online a guide as to how new parents through surrogacy in India may obtain citizenship for their child. The primary reason for India’s popularity is that a commercial surrogacy arrangement in India is far more affordable than a commercial surrogacy arrangement in America.

The increase in commercial surrogacy activity overseas has lead state governments to legislate in an attempt to restrict such activity. The New South Wales Surrogacy Act criminalises commercial surrogacy, and dictates that even if a New South Wales resident enters into a commercial surrogacy contract overseas, not even in Australia, they are guilty of an offence. Notwithstanding this threat, many couples have continued to travel overseas to enter into commercial surrogacy arrangements, with India being a popular destination.

This is now all set to change. A law has been enacted in India late in 2012 which disallows commercial surrogacy where:

  • Couples have not been married for two years; and
  • A commercial surrogacy arrangement would not be legal in the couple’s home country.

Commercial surrogacy is illegal in every state except the Northern Territory. The primary reason for this is that the Northern Territory does not have the facilities to produce a child by surrogacy and Northern Territory residents must travel to another state to do so. As a result of the new laws in India, only residents of the Northern Territory could enter into a commercial surrogacy agreement in India, and only if they are married, thereby preventing same sex couples, de facto couples and single parents from entering into a commercial surrogacy agreement. This of course severely restricts the ability of Australians to now enter into a commercial surrogacy agreement in India.

The reason why India has now enacted this law is unclear. The law was before India’s legislative body for many months, and it was assumed that it would stay that way, considering the wealth that commercial surrogacy arrangements bring to India. Where the pressure lay in finally having this law enacted is unclear.

What is clear, is that the result of this law is two fold:

  • Less intended parents will have the ability to enter into surrogacy arrangements; and
  • Surrogacy arrangements may become more dangerous.
  • Surrogacy in India occurs through a number of major agencies in major city centres. Smaller agencies in more rural areas of India are associated with higher risk of exploitation and improper health care. Presumably, if these restrictions are placed on such a thriving industry in India, these risks will become more pronounced. Similarly, Thailand is generally considered a risky country in which to enter into a commercial surrogacy agreement, and given that it is still legal in Thailand for Australians to access this service, their industry is likely to grow.

    Before entering into any surrogacy agreement, whether commercial or otherwise, we strongly advise that you obtain legal advice to fully understand whether your arrangement is in accordance with the law. Although there have not been any prosecutions related to commercial surrogacy to date, you should not put yourself at the risk of being the first.

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