Are There Any Restrictions on Foreigners Using Surrogacy Services in India?

India has long been a popular destination for surrogacy services, with many foreigners, including Non-Resident Indians (NRIs) and Overseas Citizens of India (OCIs), seeking surrogacy arrangements due to the country's relatively lower costs and advanced medical facilities. However, with the enactment of the Surrogacy (Regulation) Act, 2021, there have been significant changes to the legal framework governing surrogacy in India, especially for foreign nationals. The law has imposed specific restrictions and conditions for foreigners looking to engage in surrogacy services in India, and it restricts the use of commercial surrogacy by foreign nationals.

Restrictions on Foreign Nationals Seeking Surrogacy in India

Eligibility for Foreign Nationals

Under the Surrogacy (Regulation) Act, 2021, surrogacy in India is primarily allowed for Indian citizens and Overseas Citizens of India (OCIs). Foreign nationals can only access surrogacy services in India under very specific conditions:

• Married Heterosexual Couples: Foreign nationals must be a married heterosexual couple to be eligible for surrogacy in India. Single individuals, same-sex couples, and unmarried individuals are not eligible to pursue surrogacy in India.
• Non-Resident Indians (NRIs) and OCIs: NRIs and OCIs are allowed to seek surrogacy services, provided they meet other criteria specified by the law, including age and medical conditions.
• Foreign Nationals (excluding NRIs and OCIs): Foreign nationals (non-NRI and non-OCI) are not permitted to engage in surrogacy in India under the current legal framework. The law explicitly excludes foreigners who do not hold Indian citizenship or OCI status from using surrogacy services in India.

Commercial Surrogacy Prohibited for Foreign Nationals

The Surrogacy (Regulation) Act, 2021 explicitly bans commercial surrogacy in India. This includes prohibiting foreign nationals from entering into commercial surrogacy agreements. In commercial surrogacy, the surrogate is compensated beyond medical expenses, and the practice has been deemed exploitative.

Foreign nationals are allowed to pursue altruistic surrogacy (where the surrogate mother is not paid beyond medical expenses and insurance) if they meet the legal criteria. However, altruistic surrogacy is only allowed under very specific conditions and is restricted to heterosexual married couples.

Non-citizens (including foreign nationals) can only access surrogacy if they meet the criteria for altruistic surrogacy, and their arrangement must be non-commercial.

Conditions for NRIs and OCIs

For NRIs and OCIs, the Surrogacy (Regulation) Act, 2021 imposes additional eligibility conditions:

• Residence Requirement: The intended parents must have resided in India for at least 12 months before applying for surrogacy, in order to ensure that they are genuinely connected to India.
• Age Limits: The intended parents must meet the age limits specified in the law, which are between 23 and 50 years for women and 26 and 55 years for men.
• Medical Conditions: The couple must show proof of medical necessity, i.e., that they are unable to have children due to infertility or other medical conditions.

Regulatory and Legal Process for Foreign Nationals

Foreign nationals seeking to use surrogacy services in India must comply with the following legal requirements:

• Legal Documentation: The intended parents must submit a detailed application to a registered fertility clinic in India, where they are required to provide documents like their passport, marriage certificate, proof of medical conditions, and evidence of residency in India (if applicable).
• Approval from the Appropriate Authority: The surrogacy arrangement must be approved by the National Assisted Reproductive Technology and Surrogacy Board, which ensures that the surrogacy agreement is ethical and non-commercial.
• Surrogacy Agreement: A formal legal agreement between the intended parents and the surrogate mother is required, which ensures the surrogate’s rights and welfare are protected.

Impact of the Surrogacy Ban on Foreign Nationals

Limitations on Travel

In the past, foreign nationals were able to come to India, arrange a commercial surrogacy, and leave with their child. However, with the ban on commercial surrogacy, foreigners seeking surrogacy in India will face stricter regulations, and they will need to navigate a much more stringent legal process.

Child Citizenship and Travel Issues

One of the key concerns in international surrogacy is the citizenship of the child born through surrogacy. Under the new law, the intended parents must be able to show that they have parental rights over the child, and the child must be legally recognized by their home country. This could create challenges for foreign nationals regarding the child’s citizenship, passport, and travel documents.

Role of the Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 aims to regulate surrogacy in India by prohibiting commercial surrogacy and imposing clear eligibility conditions. The Act attempts to:

• Ensure ethical surrogacy practices: particularly by banning the exploitation of women in commercial surrogacy.
• Protect the rights of the surrogate mother: and ensure that the child’s welfare is paramount.
• Limit access to surrogacy services: for foreign nationals to ensure that surrogacy arrangements are ethical, legal, and serve the interests of the intended parents and the child.

Ethical Concerns

While altruistic surrogacy is legal for NRIs, OCIs, and foreign nationals under strict conditions, the concerns regarding ethics still remain. Ethical concerns include the potential exploitation of surrogate mothers, especially when they are from economically disadvantaged backgrounds. The ban on commercial surrogacy seeks to curb these practices but still raises questions about whether altruistic surrogacy can completely eliminate exploitation risks.

Example

John and Emily, an American couple, seek to have a child through surrogacy in India. They meet the eligibility criteria set out in the Surrogacy (Regulation) Act, 2021, as they are married, and their surrogacy arrangement is non-commercial. They submit their application to a registered fertility clinic in India, providing necessary documents, including their passports, medical certificates, and proof of their marital status. After meeting all legal and medical requirements, they enter into a surrogacy agreement with a close relative of Emily, who agrees to be their surrogate mother. Once the baby is born, they apply for parental rights and citizenship for the child in both India and the United States, navigating the legal process to secure the child’s passport and legal recognition.