As India finally begins to regulate the field of surrogacy, the news is very bleak for same-sex couples and unmarried individuals desirous of working with an Indian surrogate:

In a first-of-its-kind step towards regulating the practice of surrogacy in India, the Union home ministry has issued stringent guidelines for visas being issued to foreigners seeking to rent a womb in India. The diktat indicates that gay couples and single foreigners will no longer be eligible to have an Indian surrogate bear their child as only a foreign “man and woman” who have been married for a period of two years will be granted visas.

Stating that the Union ministry of home affairs had noticed that some foreign nationals visited India for surrogacy on tourist visas, which wasn’t appropriate, the ministry decided in a little-known circular sent out to foreign embassies in July 2012 that such foreigners would be eligible to enter India only on “medical” visas, and only if they fulfilled certain criteria. The circular was notified by the Foreign Regional Registration Office in Mumbai on December 17, 2012 and was subsequently sent out to fertility clinics.

It comes even as a legislation to regulate fertility clinics, the Assisted Reproductive Technology (ART) Regulation Bill 2010, awaits tabling in Parliament.

The home ministry has laid down a host of conditions that need to be met if foreign nationals are to be issued a visa for surrogacy. Foreign couples, for instance, would need to furnish a letter from their country’s foreign ministry or embassy in India certifying that their country recognizes surrogacy. The letter needs to contain an assurance that the child or children born to the Indian surrogate mother would be allowed to enter their country as a biological child of the couple.

This is particularly significant, as many babies born out of cross-border surrogacy in recent years have been trapped in legal tangles between the home country and India. A Norwegian woman who had twins borne by an Indian surrogate in 2009 was stranded for over two years as Norway refused to accept her as the biological mother of her child. Many countries, like France, Germany, Italy and Norway, do not recognize surrogacy.

“The home ministry norms are compatible with the ICMR guidelines,” said Dr P M Bhargava, a scientist who drafted the Indian Council of Medical Research (ICMR) guidelines. When asked about gay persons seeking a surrogate child in India, as was rampant till now, he explained that the ICMR guidelines recognize only man-woman marriages.

The home ministry’s circular seems to signal some form of streamlining in the sector. A few months ago, the ICMR reached out to fertility clinics encouraging them to apply for registration. The ministry’s guidelines also mandate that the treatment of foreign nationals should be undertaken only at registered ART clinics recognized by the ICMR.

Director of assisted reproduction and genetics at Jaslok Hospital, Dr Firuza Parikh, said the home ministry has taken a good step. “Surrogacy is here to stay and, in the absence of a law, it is time that we fill in the lacunae that will come up from time to time as the science is still nascent,” he said.

However, others said such measures are ad-hoc and skirt real issues. “Surrogacy is a complex issue and the focus of the government should be on protecting the poor Indian woman who rents out her womb. While such provisions might be important, we must ask why they dither over a bill to regulate the ART sector?” said Amar Jesani of the Indian Journal of Medical Ethics.

The Ministry’s guidelines are identical to the new rules we reported upon two weeks ago issued by a Deputy Commissioner of Police in Mumbai:

* Foreigners coming to India to have a surrogate child must be on a ‘medical visa’

* Only a heterosexual couple married for two years can be eligible for a visa for this purpose

* The home country’s foreign ministry or embassy must certify they recognize surrogacy

* There should be official assurance that the child/children will be allowed to enter the home country as a biological child of the couple

* The procedure must be done at an Assisted Reproductive Technology clinic recognized by the Indian Council of Medical Research