ABC: Australian surrogacy babies in India might be left stateless
On 9 July 2012, the Indian government changed policy (not the law) and required intended parents to obtain a surrogacy visa. The problem was that it didn’t let anyone know about the change until late October.
The Indian government excluded intended parents from Queensland, NSW and the ACT, and also anyone who wasn’t married for 2 years. Gay and lesbian couples were excluded, as were singles and those in de facto relationships.
For those people stuck in the transition, who are deemed to be excluded by the Indian government and signed up after 9 July, but before the end of October, it is a waiting game, not knowing whether they will be able to bring their babies home.
The Australian government has been lobbying the Indian government about intended parents tuck in the transition.
The way that this has been handled by the Indian government has been harsh, cruel and has elements of menace. Intended parents (including some who are clients of mine) simply do not know whether they can get their babies out of India, and are afraid that they they will be the subject of threats from government authorities if they go there. They worry with good reason about what will happen to the children.
Those who run surrogacy clinics in India are entitled when they set up their businesses are entitled to know the rules of the road, and not have the rules reversed, and then advised months later that the rules were changed, without consultation.
So that this is clear, while the Indian government has been considering some years through ART bills as to how to regulate the industry, at no time were those bills enacted. It is extraordinary that a democracy like India has decided to go behind the rule of law and instead adopt these policies by administrative fiat, without debate or consultation.
Furthermore, at no stage did the ART bills, which have been around in form or other since 2008 ever suggest that there ought to be discrimination based on the relationship or sexuality of the intended parents.
There is one inevitable consequence of the approach by the Indian government: while in the short term this will mean an increase in Australian intended parents undertaking altruistic surrogacy at home, especially in Queensland, New South Wales and the ACT, as well as in Thailand and the US and more exotic destinations, in the long term it will almost inevitably mean, sooner or later, that commercial surrogacy will happen in Australia.