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Assisted Reproduction

India Investigating Gay Surrogacy Arrangements

A week ago, the birth of twins to a same-sex couple from Spain was being celebrated. Today, the Indian government is investigating the propriety of the process:

A day after it was reported that a gay couple from Spain adopted twin girls born through surrogacy in the Capital, the Delhi Commission for Protection of Child Rights (DCPCR) have asked the fertility centre owner to explain the adoption and surrogacy procedure. The DCPCR asked Dr Anoop Gupta, the o
wner of Delhi IVF & Fertility Research Centre where the surrogate mother delivered the twins, to explain the process followed for the adoption and surrogacy.

“We don’t know what procedures were followed in adopting these children and whether they were correct. The rules and guidelines are pretty stringent and there is a certain way to go about the process. We are not sure if that was kept in mind,” said Amod Kanth, chairperson of DCPCR. The notice was issued to the doctor involved and a reply was also sought from the couple. The area’s deputy commissioner of police, Central Adoption Resource Authority and National Commission for Women and Child Welfare were also notified.

The girls were born on February 1 to a surrogate mother. “The DCPCR views the entire episode seriously as the children are being taken out of the country (to Spain) amounting to an inter-country adoption,” said Kanth. “As the Indian laws are yet to approve of a gay marital relationship, the commission shows its grave concern over the issue as to whether the gay foreigner couple have the legal status to assign such surrogacy or having the legal status of adopting parents or otherwise.”

The commission has asked the doctor concerned to explain the issue, with supporting documents on Monda

As India is increasingly becoming one of the most popular destinations for international couples seeking to have a child via surrogacy, there is looming legislation being considered by the Indian Parliament. Anyone considering surrogacy in India needs to meet with an independent attorney in their home country to ensure that not only will their arrangement be valid, but that they will be able to return home with their child.


3 comments for “India Investigating Gay Surrogacy Arrangements”

  • Jon

    That is shocking to read. This clinic has clearly crossed a line and violated Indian laws. Homosexuality and same-gender relationships are illegal in India; his attempting to apply a different set of rules because the clients were non-Indian gays will not go over well with the bureaucracy. Very irresponsible for Dr Gupta to do this to say the least but his clinic has been embroiled in controversy and bad PR before, especially from Western clients.

    One clarification though for your readers: surrogacy contracts in India are currently unenforceable. It doesn’t matter who creates them (Indian lawyer or Western lawyer); ultimately the birth mother is the surrogate and if she decides to renege at birth there is nothing, let me repeat, absolutely nothing that Indian law can do to force her to give up the baby. Fortunately this has not happened yet but given the volume of surrogate babies coming out of India it is only a matter of time. The only thing that will protect clients from this potential nightmare scenario is the current ART legislation that is sitting in parliament. No timetable has been formally announced as to when it will be heard.

    • KHD

      Fair point about the surrogate’s right to keep the baby, but yet under Indian citizenship laws, a child can only be Indian if it is born in India and both parents are Indian at the time. So although the the law may not be able to prevent the surrogate from keeping the child, the law also ensure that the surrogate would be left holding a stateless child.

      I was also under the impression that under Indian law, in statute male homosexual sex is illegal (but overturned by the High Court in Delhi) but that a person of consenting age may choose to live with whomsoever they choose, with no reference to gender. While you can outlaw specific acts, I find it difficult to believe that it’s possible to make forming a relationship a crime.

      The ART bill will provide clarification and is definitely what is needed to protect all concerned. What is needed however is some interim guidelines for those who are currently involved in international surrogacy arrangements so that their position is clear.

  • Jon

    One clarification to above comments: although homosexuality is illegal in India, gay clients are routinely giong to India for surrogacy. The caveat is that you have to present yourself as a single commissioning parent and not officially declare your sexual orientation in any paperwork; something that Dr Gupta and this Spanish same-gender client blatantly ignored and challenged. They will have a rough road ahead of them getting those babies out of India now even though one of them is the genetic father. So, yes, gay couples can use India for surrogacy needs but only the actual genetic father can be in any contracts and dealings with the bureaucrats. Sorry for confusion if any.

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