A court in Mumbai has temporarily lifted a government prohibition on foreign couples’ using Indian surrogate mothers, clearing the way for two fertility clinics in the city to keep serving clients from abroad, two lawyers involved in the case said.
Last week, the Indian Council of Medical Research, instructed clinics not to allow foreigners to employ Indian women as surrogates – part of a government effort to impose tighter limits on a growing industry that has raised concerns about exploitation of women.
Tuesday’s order by the Bombay High Court opens the door for other clinics to seek similar relief, lawyers said.
Three fertility doctors had asked the court to delay the council”s ban so that couples that had begun the administrative and medical procedures necessary to have a child with a surrogate could complete the process at their clinics, said Amit Jajoo, a lawyer who represented them.
One of the physicians, Kaushal Kadam, medical director at the Corion Fertility Clinic in Mumbai, said “This is just an interim relief” to allow the clinic to complete the processes already started and “avoid medical and commercial complications.”
“A more holistic legislation addressing this cutting edge field is the need of the hour,” said Dr. Kadam adding that she had about 20 couples affected by the ban.
“The court felt that the government’s action of banning surrogacy straight away is inappropriate because the people would be stuck midway,” said Vikrant Sabne, a lawyer acting on behalf of Surrogacy India, the other clinic in the case. “The judge said it was not about money invested, it was about emotions,” he said.
Dr. Sudhir Ajja, another of the physicians in the case and a clinician at Surrogacy India, said the court had asked for a guarantee that they would not take any new patients unless the ban is fully lifted.
“We will be in compliance,” Dr. Ajja, who estimated he had about 20 commissioning couples, said.
Mr. Sabne said the court gave the government until Dec. 15 to respond to its ruling. A spokesman for the medical council couldn’t be reached by phone after office hours on Tuesday. An email seeking comment wasn’t immediately answered.
In a letter dated Sept. 28, the council told clinics “not to entertain any foreigners for availing surrogacy services in India.” The notice did not say whether those who had already begun the lengthy process of in vitro fertilization and embryo transfer could continue, leading to confusion among prospective parents.
Separately, the Indian Supreme Court is currently hearing what is known in India as a public-interest litigation, which allows people to file lawsuits on issues of national concern, asking it to ban commercial surrogacy, saying that women who serve as surrogates are often ill-informed and taken advantage of.
The government last week said in a filing with the Supreme Court that it “does not support commercial surrogacy” and that “adequate provisions will be made in the enactment to prohibit and penalize commercial surrogacy services.”
In September, the Ministry of Health released draft legislation that would prohibit foreigners, except for those with family origins in India, from employing Indian surrogates. The proposed law is currently out for public consultation.
Nayana Patel, medical director at the Akanksha Infertility Clinic in Anand in the western state of Gujarat who has more than 150 foreign patients who are currently in the surrogacy process, said the Mumbai court’s order was “a good move.”