With the The Assisted Reproductive Technologies (ART) Regulation Bill 2010 being sent to the Law Ministry, it appears that the final law will not permit gay couples to work with gestational carriers in India. While I suspect that same sex couples will still utilize Indian surrogates by attempting to circumvent the law by proceeding as single individuals, they will not be capable of obtaining a birth certificate with both partners’ names.

Perhaps the greatest impact of this law will be to severely limit the number of international couples that can now turn to India because of surrogacy prohibitions in their own country. The new law requires that the Intended Parents obtain:

“a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.”

A companion provision of the bill declares that any child delivered by an Indian surrogate is not a citizen of India. Consequently, the inability to obtain citizenship from either India or the Intended Parents’ home country would preclude the child from obtaining a passport and being able to leave India. Sadly this has happened many times over the past couple of years as we have previously blogged. Given the increasing number of countries that prohibit surrogacy, this requirement will likely prove to be an insurmountable obstacle for many would-be-parents.

Here is some more information on the legislation and its impact on same sex couples:

As part of reforms to the country’s surrogacy and fertility treatment laws, only heterosexual couples will be allowed to have children by surrogate. The Assisted Reproductive Technologies (ART) Regulation Bill 2010 was sent to the law ministry for approval this week. There is apparently nothing in the bill to stop a single gay man from having a surrogate baby, as single men and women will be eligible. Married and unmarried straight couples who live together will also be permitted to use surrogate mothers. However, women must be able to prove that they cannot have a baby naturally.

According to the Evening Standard, a senior Indian official said: “We have to look after the interests of our own citizens as well as handle the tricky matter of the sensitivities of these couples who have not been able to have children in the normal way. “But above all, we have acted to put some kind of hold on the whole surrogacy issue by banning homosexual couples from coming to India to enter into such deals.

India is one of the top destinations for gay and straight couples seeking a surrogate child as it is far more cost-effective than other countries. In the UK, single people cannot gain full legal rights over their children born by surrogate mother – a problem which affects gay single men in particular. Parental orders are used to extinguish the rights of a biological mother and her husband or partner. However, these can only be granted to couples.

India’s emergence as a surrogacy hotspot has prompted authorities to clamp down on unscrupulous practices, such as the persuading of impoverished women to rent out their wombs. This month, media attention focused on a Spanish gay couple who had twin girls born to a surrogate mother. The Delhi Commission for Protection of Child Rights ordered the clinic involved to explain its procedures and suggested that the transaction had not been legal. Chariman of the commission Amod Kanth said: “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.”