Eight years ago, a same-sex couple in Delhi had a daughter through surrogacy. But when they chose to have another child this year, hoping to complete the picture of an ideal family, the law had changed. They realised that they could not hire a local surrogate as before and had to find one from within their circle of family and friends. What’s more, the surrogate couldn’t be paid for her services.
“Nobody, no matter how close, would agree to volunteerism of this magnitude. So we decided to find a surrogate in the US through a foreign agency,” the couple says.
The Indian law in its current form allows only altruistic surrogacies, that too with several conditions. (Express Illustration by Suvajit Dey)
They are among the increasing number of privileged Indians who are travelling abroad to have a baby via surrogacy, a contractual process by which a woman carries and delivers a child for a couple after their embryo is implanted in her through in-vitro fertilisation (IVF). This comprises a mix of single men, women, same sex couples and even couples with children of their own, all of whom are hemmed in by the Surrogacy Regulation Act of 2021 from becoming parents through the commercial route. The law in its current form allows only altruistic surrogacies, that too with several conditions.
An elite privilege
The number of would-be parents seeking solace overseas has been consistently rising over the past year, with the US and Canada figuring high among those who can afford it. East European and Latin American countries are draws among those looking for budget options.
The Indian law criminalises parents or couples if they pay the surrogate. (Express Illustration by Suvajit Dey)
“A surrogacy in the US costs anything between $200,000 (approximate Rs 2 crore) and $700,000 (approximately Rs 6 crore) inclusive of legal fees and any complications you and your surrogate may want to secure yourself against,” says Dr Priyanka Mathur, a cardiologist and co-founder of MediPocket, a digital medical tourism portal that connects intending parents with surrogacy partners in the US. “Rich Indian couples mostly go to California, the most preferred but the most expensive destination. The others prefer New York and then Miami,” she adds.
Straight couples, some of whom may have had their first child biologically and are more cost-conscious, go to Georgia. Same-sex couples prefer Mexico, Columbia and Argentina, considered safe for the LGBTQ community. Besides, the costs in Latin America are halved compared to what they charge in the US. In Georgia, the costs range between $40,000 (approximately Rs 34 lakh) and $60,000 (approximately Rs 50 lakh) and in South American countries, the entire procedure could be wrapped up in $75,000 (approximately Rs 64 lakh).
Why is the law compelling couples to go overseas?
The domestic surrogacy law has a slew of conditions that would-be parents are finding cumbersome. Under the law, which has been amended a few times, straight couples, widows or a divorcee between 35 and 45 years of age can avail surrogacy only if they have a medical condition. “Once they have the permit, they need to find a volunteer who will carry their baby to full term free of cost other than medical expenses and insurance,” says Dr Ramyasree Parvathareddy of Apollo Fertility in Chennai.
The law criminalises them if they pay the surrogate. “The altruistic law has turned many family members against each other as healthy women are being pressured by elders to become surrogates, says Dr Nishi Bhatnagar, medical director of the Infinite Fertility Clinic in New Delhi.
Most surrogacy providers are not based in India and promote their services in different countries either remotely or through a local agent. (Express Illustration by Suvajit Dey)
There are more obstacles. An amendment in 2022 allowed married couples to use an egg or sperm of a donor in case one of the partners had a medical condition. In March 2023, a new rule banned the use of donor gametes altogether. Latest amendments in February have relaxed the condition that only the husband’s sperm and the wife’s eggs be harvested for surrogacy. “Now a couple can use donor sperm or eggs if one of the partners has insufficient counts of gametes,” says Dr Ramyasree Parvathareddy of Apollo Fertility in Chennai. However, the same rules limit divorced or widowed women from using donor eggs. They have to use their own eggs and get donor sperm.
Where are surrogacy providers?
Most surrogacy providers are not based in India and promote their services in different countries either remotely or through a local agent. Doron Mamet-Maged, the founder of Tammuz Family, a surrogacy firm in Israel which coordinates requests from Indians, says the applicants are mostly between their late 30s and 50s. “I get enquiries from surrogacy seekers on a daily basis and they belong to different socio-cultural backgrounds,” he adds.
“The law has turned many family members against each other as healthy women are being pressured by elders to become surrogates,” said Dr Nishi Bhatnagar. (Express Illustration by Suvajit Dey)
Mathur explains why most of her clients choose the US as their surrogacy destination despite the high price. “Surrogacy laws in the US are well defined for both the intending parents and the surrogate. Second, healthy couples can get an embryo created with their eggs and sperm. Third, the US allows gender selection. The fourth and the most important attraction is that the newborn child could be a US citizen,” she says. The last works for most Asian parents who hope that when their children pursue higher education in the US, they would be paying the same fees as local students and not what international students pay. “This is the biggest return of investment on this procedure,” says Mathur.
What about citizenship status of the child?
Using a US surrogate is legal and ethical as per international IP, says Mathur. “If born in the US, the child will have an American birth certificate and passport and can be brought back as an Overseas Citizen of India (OCI),” says Mamet-Maged. “It is permissible to seek medical care, including fertility treatments, on a B1/B2 visa. Applicants who seek medical treatment in the US must demonstrate, to the satisfaction of the consular officer, their arrangements for such treatment and establish their ability to pay all costs associated with such treatment. However, travelling in order to give birth in the US is not permissible, meaning that an Indian surrogate would not be allowed to travel to the US for the purposes of giving birth,” says Christopher Elms, US Embassy spokesperson.
For other countries, the newborn will get the citizenship of their parents. As Home Ministry sources say, “The parents should get a birth certificate and an NOC from the surrogate mother. However, if the child has assumed foreign nationality, then they must apply for an Indian visa to go with the child’s foreign passport.”
The domestic surrogacy law has a slew of conditions that would-be parents are finding cumbersome. (Express Illustration by Suvajit Dey) 
The Indian law in its current form allows only altruistic surrogacies, that too with several conditions. (Express Illustration by Suvajit Dey)
The Indian law criminalises parents or couples if they pay the surrogate. (Express Illustration by Suvajit Dey)
Most surrogacy providers are not based in India and promote their services in different countries either remotely or through a local agent. (Express Illustration by Suvajit Dey)
“The law has turned many family members against each other as healthy women are being pressured by elders to become surrogates,” said Dr Nishi Bhatnagar. (Express Illustration by Suvajit Dey)
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