It is estimated that 15 per cent of couples around the world are infertile. A large number of such childless men and women fly down to India, known for its cheap surrogate mothers. But this may soon change as the country is just a few steps away from putting in place a legislation that hopes to tether India's illegal surrogacy market.

The Assisted Reproductive Technology Regulation Bill, 2010, prepared by a 12-member expert committee of the Indian Council of Medical Research (ICMR), says that foreigners and NRIs coming to India to rent a womb will now have to submit two documents either from the embassy of their country in India or from the external affairs ministry of their country confirming that their country of residence recognises surrogacy as legal and will give citizenship to the child "born through the agreement from an Indian mother". The bill also takes a stern view against foreign gay couples. It says that same sex couples, Indian or foreign, can't have children born with the help of an Indian surrogate mother unless gay and lesbian relationships are legalised in India.
Ministry officials say India is witnessing a growing number of male couples from different countries hiring surrogates to bear children. Member-secretary of the committee Dr RS Sharma says, "These babies face the risk of becoming stateless citizens. For instance, Japanese baby Manji Yamada who was born to an Indian surrogate mother got caught in a legal battle because the commissioning Japanese parents got divorced. Recently, a German couple's child, begotten from an Indian surrogate mother, was refused Indian citizenship. Germany also does not recognise surrogacy as a means of parenthood. "

India has been a popular destination for surrogacy-related fertility tourism for the past 20 years and has been attracting tourists from Britain, France, the United States, Canada, Singapore, Japan, Australia, the Middle East and Israel. With no law on assisted reproductive technology (ART) in place, it has been easy to open infertility or ART clinics in India that use artificial fertilisation techniques or the use of a surrogate mother.

According to unofficial estimates, India's surrogacy market is pegged at $499 million. But it's expected to take a serious beating in view of the stringent measures suggested in the bill. "In public interest, therefore, it has become important to regulate the functioning of such clinics to ensure that the services provided are ethical and that the medical, social and legal rights of all those concerned are protected. The bill details procedures for accreditation and supervision of infertility clinics, " reads the document of the bill.

The new law will make it difficult for fertility clinics to undertake unregulated surrogacy or IVF technologies for both domestic and foreign patients. "All ART clinics shall maintain detailed records of all donor oocytes, sperm or embryos used, the manner and technique of their use and the individual or couple or surrogate mother in respect of whom it was used. The clinics will then put online all information available to them in regard to progress of the patient (such as biochemical and clinical pregnancy) within seven days of the information being available, withholding the identity of the patient. The records will have to be maintained for at least 10 years, " directs the bill.

In addition to the absence of laws regulating ART, the availability of cheap surrogate mothers -having a child here costs between Rs 10 lakh and Rs 25 lakh - has also fuelled this niche travel. Poor, illiterate women without strong bargaining power are lured into becoming surrogate mothers. And many are not even paid fully for their service. In stark contrast, in the US surrogacy costs up to $120, 000.

The new bill aims to protect such vulnerable women. It includes a provision which says that a foreign couple will have to identify a local guardian in India to take care of the surrogate mother during her pregnancy as well as after the delivery till the child is handed over to the commissioning parents. If the foreign parents fail to take the child within one month of its birth, the surrogate mother and the local guardian will be "legally obliged to hand over the child to an adoption agency".

The bill also makes it mandatory for the commissioning couple to bear all expenses of the surrogate mother, including insurance charges, and she may receive monetary compensation for agreeing to act as a surrogate. And in case of a divorce between "the commissioning parents, the child born through surrogacy will continue to be their legitimate child. "
The bill is right now with the law ministry awaiting final touches before it is presented in Parliament.