India changes the surrogacy rules

India changes the surrogacy rules

All Australian intended parents, but especially those from NSW, Queensland,the ACT and possibly Tasmania looking at India as the place for surrogacy have another thing to worry about, due to a notice issued by the Indian government and posted to embassies throughout the world. The notice, seen for example at the website of the Indian High Commission, says this:

IMPORTANT NOTICE


Any person seeking a visa to India for purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country (Australia) permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian Law.

What is significant about the notice is that it requires two things:

  1. To ensure that the law of Australia permits surrogacy;
  2. That Australia will provide appropriate travel documents.

The two are not the same. Laws dealing with surrogacy in Australia are largely made by the States and Territories, but visas and migration are dealt with by the Australian government. In NSW, Queensland and the ACT (and soon, possibly Tasmania, where the outlook remains uncertain) it is an offence to enter into a commerical surrogacy arrnagement overseas, punishable at worst by imprisonment.

Most importantly for the purposes of the notice, the laws of NSW, Queensland and the ACT ( and soon possibly Tasmania) do NOT permit conmmercial surrogacy in India. This may mean that commercial surrogacy cannot be proceeded with there.

In 2008 a bill was placed before the Indian parliament regulating surrogacy for the first time. In 2010 a second bill was put before the Parliament, but that bill is currently bogged down in committee. However, the Indian government is clearly intending to act, and act now, given the explosive growth in commercial surorgacy in India.

The notice also highlights the other issue: there is an inherent risk for Australians seeking travel documents for their children born through surrogacy. The DNA test is NOT based on any law, and is contrary to Federal Court rulings, can be altered any day without notice, leaving intended parents and their kids trapped overseas.

I don’t know yet if the Indian government will require proof that the Australian government will issue travel documents before the surrogacy arrnagement is entered into. If so, this will be almost impossible for anyone to obtain.

The notice makes plain what I have been advising clients:

  • It remains an offence to enter into commercial surrogacy overseas for those ordinarily resident (and in the case of NSW as an alternative, domiciled) in NSW, Queensland or the ACT .
  • Surrogacy is a process akin to going through the minefield- full of traps.
  • No one should consider surrogacy without getting expert advice first, both from a lawyer and from an experienced migration agent.

Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

8 Essential Rules for Known Sperm Donation in Australia

Sperm donation in Australia can be a generous, life-changing act. It can also become an expensive legal and emotional mess if people get the groundwork wrong. Known donor arrangements often begin with goodwill, trust and optimism. Unfortunately, none of those things is a substitute for legal clarity. When people talk about sperm donation in Australia,… Read More »8 Essential Rules for Known Sperm Donation in Australia

Is Your Ex Turning Your Child Against You? Understanding Parental Alienation

Parental alienation is one of the more troubling issues that can arise after separation. It can be subtle, it can be deliberate, and it can cause real harm to children. In family law matters, it often appears in the form of one parent undermining the child’s relationship with the other parent, sometimes slowly and sometimes… Read More »Is Your Ex Turning Your Child Against You? Understanding Parental Alienation

Surrogacy Counseling: The Key Differences Between QLD and NSW

Surrogacy counselling is one of the most important parts of any surrogacy arrangement, and it is also one of the most commonly misunderstood. That confusion does not just affect intended parents and surrogates. It can also affect lawyers, counsellors, and other professionals involved in the process. The reason is fairly simple. Both Queensland and New… Read More »Surrogacy Counseling: The Key Differences Between QLD and NSW

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board