Surrogacy Law in US and India

Surrogacy is a complex legal issue in the US with various states adopting different stances on it. For instance, in Michigan and D.C., surrogacy contracts are void and parties to the contract can be penalized with a $10,000 fine or jailed for a year. Some other states allow surrogacy but regulate it differently.

How surrogacy is treated in the US
Bans: Arizona, District of Columbia
Voids and Penalizes: Michigan, New York
Voids: Indiana, Kentucky, Louisiana, Nebraska
Prohibits some/Allows others: North Dakota, Washington,
Allows but regulates: Arkansas, Florida, Illinois, Nevada, New Hampshire, Texas, Utah, Virginia
Case law: California has case law on surrogacy, not codified law. It allows and recognizes surrogacy contracts.

But there are still many states, which do not have a surrogacy law. This can sometimes push surrogacy into a grey area and make matters difficult for parties involved in a surrogacy contract.

In India, a surrogacy law is on the anvil. It will largely be based on the surrogacy guidelines currently in use for ART clinics in India laid down by the Indian Council of Medical Research. This draft law is expected to be enacted into law by the Indian Parliament soon.

It lays down detailed guidelines on how the surrogacy contract should be formed, the eligibility of the parties to the contract, and so on. Here are some excerpts of the draft Indian surrogacy law:

• The ART clinic cannot be a party to the surrogacy contract. The contract is carried out between the genetic parents and the surrogate.
• "A surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. While registering, she must mention that she is a surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc."
• "The birth certificate shall be in the name of the genetic parents."
• "All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary compensation from the couple for agreeing to act as a surrogate."
• "An oocyte donor cannot act as a surrogate mother for the couple to whom the ooctye is being donated."
• "A third-party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa."
• "Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible/undesirable to carry a baby to term."
• "A surrogate mother should not be over 45 years of age."
• "A prospective surrogate mother must be tested for HIV and shown to be seronegative for this virus just before embryo transfer."
• "No woman may act as a surrogate more than thrice in her lifetime."

In India, surrogacy is legal and accepted socially. The government has a favorable attitude towards it. When this is combined with the low cost of surrogates in India, it is not surprising that India has turned out to be the chief international destination for infertile couples seeking surrogacy.

Read more on ART Clinics in India.