In India, foreign nationals have been banned from engaging in commercial surrogacy since 2015. The Surrogacy [Regulation] Bill was proposed in 2016 to ban commercial surrogacy for foreign clients while allowing altruistic surrogacy between relatives for Indian couples. Under the proposed bill, the commissioning couple must be Indian and have been legally married for more than 5 years. The surrogate mother must be a close relative of the infertile couple and can only become a surrogate mother on one occasion (Timms 2018a, b).
The bill was criticized by stakeholders for being too restrictive (Photopoulos 2017). For example, Dr. Nayna Patel, head of the Akanksha IVF clinic in Anand, Gujarat, who is known for running a large surrogacy house, opposed the bill and gathered surrogate mothers to protest against it (Bedi 2016). It was argued that the commercial surrogacy ban would deprive working-class women and their families of substantial income streams (Arvidsoon et al. 2017; Pande 2013). Dr. Patel claimed that only 25 out of every 1000 surrogacy cases she handled involved close relatives as surrogate mothers.
Feminists have also spoken out against the bill, saying that altruistic surrogacy between relatives reflects a patriarchal kinship model (Amar 2017). Sama Resource Group for Women and Health, an advocacy organization for women’s health, describes finding a surrogate mother in a relative as old-fashioned nostalgia. In reality, this practice raises the potential for the coercion of vulnerable women within the family structure. According to Sama, excessive surrogacy restrictions will inevitably lead to black markets in Indian society (Nadimpally et al. 2016; Rudrappa 2017; BMJ 2019; Trompenaars and Hampden-Turner 1997).
An ex-surrogate who worked for a surrogate and egg donor broker in Mumbai explained her stance against altruistic surrogacy, as follows (2016, personal communication):
Altruistic surrogacy between relatives is difficult in India. Infertile couples are reluctant to ask their relatives for a surrogate mother because infertility is embarrassing, and they hate to be known to their privacy. They prefer to ask a third party who is unknown (that is, they are willing to paying for the surrogate). For poor women, their normal work can't make that much money. Foreign clients are more welcomed because they can pay more than Indians and she can get extra money. In my opinion, whether commercial or altruistic is indifferent. It's almost the same thing, isn’t it? And even if the government bans it, we can do most of the things with bribes in this society.
One ex-surrogate broker spoke of plans to send her surrogate mothers abroad to escape domestic regulations. The hypothesis that the tightening of regulations will lead to the emergence of black markets is therefore becoming a reality (Rudrappa 2016). Once the commercial surrogacy market emerged, the option of regulation and proper implementation seemed appropriate.
After significant revisions, the 2016 bill was finalized in 2019 and approved by the parliament in February 2020. While the altruistic surrogacy principle was retained within the revised Surrogacy (Regulation) Bill 2020, the requirement that the surrogate mother be a close relative of the infertile couple was removed. Now, any “willing woman” could become a surrogate mother. With the provision of relatedness removed, working-class women are overwhelmingly disadvantaged (Rozée et al. 2020) and will inevitably become surrogate mothers. Banning commercial surrogacy for foreign nationals simply shifted the problem of exploiting surrogate mothers to local populations.
Finally, the Surrogacy (Regulation) Act 2021 came into effect from January 2022. The Act aims to prohibit commercial surrogacy but allows for altruistic surrogacy. In stark contrast to the bill that was approved by parliament in 2020, which defined that “any willing women” can be a surrogate mother, the Act 2021 reverts to the earlier proposal that altruistic surrogacy should be conducted between close relatives and has stipulated it as such. Consequently, access to surrogacy services for infertile Indian heterosexual couples is limited. We do not yet know how altruistic surrogacy under the Act 2021 is being conducted in reality in India, and this should be explored.
A 2002 guideline issued by the Medical Council of Thailand that banned commercial gamete donation and surrogacy was not binding (Medical Council of Thailand 2002; Virutamasen et al. 2001; Whittaker 2016a). Only after the surrogacy scandals of 2014 did the Protection of Children Born Through Assisted Reproductive Technologies Act (B.E. 2558) come into effect in 2015, limiting the practice to non-commercial surrogacy between relatives. Exceptions are allowed if a surrogate relative cannot be secured, when appropriate acquaintances can be used instead of a relative. The intended parents must be Thai citizens and a heterosexual couple. International marriage couples with Thai citizen must have been married for more than 3 years prior to engaging in the practice. Approval from the Ministry of Health Committee must be obtained in advance. The commissioning couple is immediately recognized as the legal parents of the child.
As of January 2018, roughly 100 surrogacy cases had been already conducted. The review committee for surrogacy applications consists of 17 members, including obstetricians and gynaecologists, paediatricians, and child welfare specialists (Stasi 2016, 2017). Since the committee was established in 2015, 76 cases have been submitted for review and 72 have been approved. As at January 2018, 140 cases had been approved. Of these, roughly one-third of surrogate mothers were close relatives of the intending parents, one-third were distant relatives, and one-third were non-relatives. According to a government informant, no major problems have been reported (Hibino 2020).
A Thai doctor involved in reproductive medicine evaluated the law in the following way (personal communication, 2018):
Foreigners can no longer request surrogacy in Thailand. However, if you are a Thai citizen, you can. And the conditions are not so strict. If you can't find a surrogate mother from your relatives, friends or any acquaintances are also acceptable. The principle of payment to the surrogate mother will be discussed by the Medical Council of Thailand, but the specific amount has not yet been announced. In my opinion, the surrogate mother will be pregnant for as long as nine months, so some compensation should be granted. With this law, Thai couples can now legally request surrogacy in the country and no longer have to go abroad.
Since the surrogate mother need not be a relative and remuneration has not yet been determined, it is easy to find a surrogate mother. While custody is granted to the intended parents, the child’s right to know their birth mother has not yet been established. Nonetheless, considering that the term “protection of children” is included in the title of the law itself, this sends the message that it is in the child’s best interest to be raised under the custody of the intended parents rather than the surrogate mother.
The view that surrogacy between relatives is altruistic surrogacy is held by Vietnam (Hibino 2015), Cambodia, Nepal, India, and Thailand. In the case of Thailand, the law is flexible and doctors have a great deal of discretion, which raises concerns that the intent of the law may be applied arbitrarily (Hongladarom 2018). As a result of this flexibility, there is concern that the law could lead to de facto commercial surrogacy (Techagaisiyavanit 2016). While commercial surrogacy still takes place underground in Thailand and in neighbouring countries, no protection is offered for surrogates (Attawet et al. 2021).