The utter lack of comprehensive laws regarding surrogacy in India has been causing complications for more and more foreign couples that choose Indian surrogate mothers. India is fast becoming the most popular destination to arrange for a surrogate mother, or a woman who will carry and deliver a baby for another person, due to its low cost and lack of surrogacy laws. But India isn’t the only country with convoluted legislature regarding surrogacy. Numerous other nations have less than friendly laws or hardly any laws on surrogacy, which causes confusions here at home and abroad.

In the United States, legislature regarding surrogacy varies across states. Arizona and Washington, DC ban all forms of surrogacy, while California has open surrogacy laws and Washington and Delaware only allow some forms of surrogacy. In other nations such as Australia, Brazil and the United Kingdom altruistic surrogacy isn’t prohibited by law, but commercial surrogacy, where the surrogate mother is given monetary or some other form of compensation in addition to her medical expenses, is prohibited. Therefore, couples or individuals from countries that ban commercial surrogacy are bound to fall into a legal mess as soon as they land in India looking for a surrogate mother.

These nations also consider the surrogate mother as the legal guardian and require adoption of the child in order for it to be nationalized. In India, the 2008 Draft ART Regulation Bill requires birth certificates to include the names of the intended parents so that they become the legal guardians. The differences in the law cause problems for many couples returning to their nation of origin, although many heterosexual couples manage to return with their surrogate child by claiming surrogacy wasn’t involved. Gay couples, which are increasingly choosing surrogacy in India, often get stuck in long legal battles.

India isn’t the only country still debating laws around surrogacy; Japan and South Africa have been passing around legislature for year. Japan doesn’t prohibit surrogacy but strongly discourages it, believing that it causes physical and mental discomfort to the surrogate mother and confuses familial relationships. South Africa, although lacking specific legislature governing surrogacy, maintains strict guidelines. For example, only married couples can opt for surrogacy, and the surrogate mother must have at least one child of her own. The courts also require an examination of the commissioning parents to confirm that they have appropriate intentions and require a signed agreement between the surrogate mother and the commissioners in order to be able to nationalize the child.

India’s Parliament plans to pass a bill to strengthen surrogacy laws this year. Some provisions slated for addition include preventing same-sex couples from hiring a surrogate mother, not allowing surrogate mothers under the age of 21 and over 35, and prosecuting couples who disown the baby if it is born with defects. The intent of lawmakers is to prevent the exploitation of surrogate mothers of the 1.5 billion Euros per annum industry.

By Dr. Ranjana Kumari, Director of Centre for Social Research.

In the latest publicized surrogacy battle in India, Norwegian woman Karen Ann Volden has been fighting legal battles with Norway and India since 2009 to allow her to return to Norway with the twins she had delivered through a surrogate mother. Volden’s twins were born in January of 2010 but were denied citizenship or adoption rights in Oslo, and were refused the right to be made Indian nationals by Delhi.

Surrogate mothers are hired to bear a child that they hand over to their commissioner after its birth. India has become one of the most popular destinations for surrogacy due to the cheap price, and mainly because there are no laws or governing body that overseas the process. Commercializing a mother’s womb needs to be looked at carefully, because it isn’t just a financial transaction. Having a woman play the role of a surrogate mother involves social and economic aspects. We must enact laws that give protection and rights to all parties involved in surrogacy—and that includes the doctor performing the in-vitro fertilization (IVF) process and delivery, the commissioners and the surrogate mother.

Most couples and individuals opt for a surrogate mother in India because surrogacy is illegal in their own country of origin. In a study conducted by Centre for Social Research, the most prevalent surrogacy areas in India are in Anand, Surat and Jamnagar of Gujarat state, with surrogate mothers travelling from as far as Jharkhand state. The more alarming results showed that the majority of surrogate mothers are displeased with the way clinics treat them. The women are often coerced into repeated inseminations if the first one failed, not allowed to meet their families and paid only after relinquishing the baby to the clinic.

Sadly, in a society where married women are totally dependent on their husbands, a surrogate mother can face many levels of violence, including social ostracizing, which is why this topic has been kept under the table by surrogate mothers. At the same time, surrogate motherhood isn’t always a noble idea for parents who are unable to conceive children. The reasons behind their efforts should be investigated as well because it has many ramifications if not checked.