Our comment section is often a treasure trove of invaluable information. I wanted to promote to the front page some recent comments from readers of our blog who have shared some of their own insight. Today, we are focusing on the risks of proceeding with a surrogate arrangement in India, particularly in light of the spate of countries who have denied passports to their citizens who worked with international surrogates as well as the recent controversy over a gay couple from Spain using an Indian surrogate mother.

From Laura, discussing the upcoming ramifications of the proposed Indian bill regulating surrogacy:

Under the draft Assisted Reproductive Technologies (Regulation) Bill – 2010, a foreign couple seeking surrogacy in India must establish through “proper documentation (letter from the embassy…or the foreign ministry…)” that their home country permits surrogacy and that the baby will be permitted entry in the home country as a biological child of the commissioning couple/person. Therefore, if this legislation passes in India, or some form of this provision, foreign couples will no longer be able to escape the legal restrictions on surrogacy of their home country by going to India. In other words, these eight countries that issued notifications are just preempting what looks to be the future of cross-border surrogacy.

Jon weighs in on the perils facing gay couples working with Indian surrogates:

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.

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.