Commercial surrogacy is when an intended parent or intended couple compensates a woman in exchange for her carrying and delivering a baby for them. Immediately after the child is born, he or she is turned over to the intended parent(s) via a private process or a legal adoption process. This process is utilized by a variety of people, including those with fertility problems, same-sex couples, and single people who harbor a desire to have children. Even celebrities have been known to have children through surrogacy. Some famous examples are Sarah Jessica Parker, Kelsey Grammer, Robert De Niro, and (most recently), Sir Elton John.
Commercial surrogacy is a huge industry in India, where countless foreign couples head to make their dreams of having a child come true. Now, however, the country is the target of much heated criticism because of new laws that are being deemed discriminatory. These new laws state that in order for a foreign couple to engage in the surrogate process in India, they must be a “man and woman (who) are duly married and the marriage should be sustained at least two years”. This legislation effectively rules out gay couples (whether they are married or not) as well as single people looking to start a family. And this action has, as can be expected, drawn a ton of ire from the surrogacy community.
Seen by the government of India is being a necessary step in the regulation of surrogacy tourism in their country, fertility clinics and gay rights activists are viewing it as “restrictive and very discriminatory”. Head of the International Fertility Clinic in New Dehli, Dr. Rita, Bakshi, says that the legislation essentially strips people of their right to parent. Nitin Karani, a gay rights activist in Mumbai, is quoted as saying that “It’s totally unfair – not only for gay people but for people who are not married who may have been living together for years, and for singles”.
The new rules also state that people coming to India for the purposes of surrogacy must apply for a medical Visa and must provide proof that their home country will give citizenship to any child born to a surrogate parent. Some argue that these new rules represent an “uncharacteristically moralistic stand on the government’s part” Many agree with Rita Bakshi, who asks “Who are we to say that one has to be married to have children?”
However, it is believed that the springboard behind this new legislation is less the value placed on marriage and more about not becoming involved in international legal disputes. There have been highly publicized cases in which the children of these international surrogacy situations have been stuck in “citizenship limbo”. In one much publicized case, a native Norwegian was stuck in India for two years with her twin children. Her children, born to an Indian surrogate, were refused the necessary travel documents because it was determined through DNA testing that they were not biologically hers. In another high-profile case, a French gay man obtained twins through an Indian surrogate and, upon arriving home (where surrogacy is illegal), his children were taken from him and placed in foster care. He is still fighting to get them back.
Whatever the cause for India’s new legislations, it is causing a great deal of turmoil for those same-sex couples and single individuals who looked to India as a solution to their childlessness.