Surrogacy law in the US and draft guidelines for ART

clinics in India
Surrogacy is a complex legal issue in the US with various states adopting
different stances on it. For instance, in Michigan and D.C., surrogacy contracts
are void and parties to the contract can be penalized with a $10,000 fine or jailed
for a year. Some other states allow surrogacy but regulate it differently.

How surrogacy is treated in the US

Bans Arizona, District of Columbia

Voids and Penalizes Michigan, New York

Voids Indiana, Kentucky, Louisiana, Nebraska

Prohibits some/Allows others North Dakota, Washington,

Allows but regulates Arkansas, Florida, Illinois, Nevada, New

Hampshire, Texas, Utah, Virginia,

Case law California has case law on surrogacy,

not codified law. It allows and
recognizes surrogacy contracts.

For more details on the treatment of surrogacy by these states, please click here.

But there are still many states, which do not have a surrogacy law. This can
sometimes push surrogacy into a grey area and make matters difficult for parties
involved in a surrogacy contract.

In India, a surrogacy law is on the anvil. It will largely be based on the surrogacy
guidelines currently in use for ART clinics in India laid down by the Indian Council
of Medical Research. This draft law is expected to be enacted into law by the
Indian Parliament soon.

It lays down detailed guidelines on how the surrogacy contract should be formed,
the eligibility of the parties to the contract, and so on. Here are some excerpts of
the draft Indian surrogacy law:

• The ART clinic cannot be a party to the surrogacy contract. The contract is carried out
between the genetic parents and the surrogate.
• “A surrogate mother carrying a child biologically unrelated to her must register as a
patient in her own name. While registering, she must mention that she is a surrogate
mother and provide all the necessary information about the genetic parents such as
names, addresses, etc.”
• “The birth certificate shall be in the name of the genetic parents.”
• “All the expenses of the surrogate mother during the period of pregnancy and post-
natal care relating to pregnancy should be borne by the couple seeking surrogacy. The
surrogate mother would also be entitled to a monetary compensation from the couple
for agreeing to act as a surrogate.”
 • “An oocyte donor cannot act as a surrogate mother for the couple to whom the ooctye
is being donated.”
• “A third-party donor and a surrogate mother must relinquish in writing all parental
rights concerning the offspring and vice versa.”
• “Surrogacy by assisted conception should normally be considered only for patients for
whom it would be physically or medically impossible/undesirable to carry a baby to
term.”
• “A surrogate mother should not be over 45 years of age.”
• “A prospective surrogate mother must be tested for HIV and shown to be seronegative
for this virus just before embryo transfer.”
• “No woman may act as a surrogate more than thrice in her lifetime.”

In India, surrogacy is legal and accepted socially. The government has a

favourable attitude towards it. When this is combined with the low cost of
surrogates in India, it is not surprising that India has turned out to be the chief
international destination for infertile couples seeking surrogacy.