Surrogacy in India
G’day. I’m Stephen Page from Page Provan Family and Fertility Lawyers. And today I’m talking about surrogacy in India.
I’m commonly asked by other lawyers or sometimes intended parents, “Well can people go to India and can they do surrogacy in India?” The answer is most of the time, they can’t. It’s really that simple.
If you’re an Aussie and you are thinking about doing surrogacy in India, just forget it.
India really put down the roller doors on surrogacy for Australians in 2012 and again restricted them from recollection in 2014 and then again in about 2016.
India quite clearly does not want foreign citizens coming to India for surrogacy and it did this initially by administrative acts, not by any law, certainly not by any act of Parliament. There was a bill going through Parliament, I believe it’s now gone through, but it took from 2008 to 2021 or 2022 to get through. But in the meantime, India restricted pretty well everyone from undertaking surrogacy in India.
Now there will be some people living in Australia who are not Australian citizens but are citizens of India. These people may be able to undertake surrogacy in India.
I’ve had a small number of Australian residents who are citizens of India or who are now Australian citizens, but haven’t formally stopped being Indian citizens.
India is different from Australia in that you can only be an Indian citizen. You can’t be a citizen of anywhere else. Australia, you can be a dual citizen or triple or quadruple, however many.
We used to be that way, but now we have that flexibility. So there are many Indian migrants to Australia who have taken up Australian citizen and haven’t formally said to the Indian government that they are now Australian citizens. They will need to do so, but sometimes surrogacy may be available to them.
The law in India is quite clear that traditional surrogacy is not allowed, that the surrogate must be a one-time surrogate only, so she can’t have done it several times over.
From recollection, the new restrictions are that she must also be a relative. It’s only open to heterosexual married couples and it can’t be commercial. So there are great restrictions on how it can occur. Within those limitations, there will be some Indian Australian residents who can undertake surrogacy in India. They must also make sure that they don’t accidentally breach the requirements of Australian laws. In particular Queensland, New South Wales, the ACT are quite clear don’t go overseas for commercial surrogacy and South Australia, Western Australia and soon the Northern Territory also say in some circumstances you can be committing offences overseas with commercial surrogacy journeys.
I suggest to get advice from an Australian lawyer first who’s familiar with this process in India of Australians going over there. And someone like me. And I say that because I’ve seen some Australian-Indian citizens who have undertaken surrogacy in India who didn’t get that advice first and got stuck and their kids got stuck there. I think the worst case I saw took about twelve or 18 months before the children could be reunited with their parents here and they had to be cared for by grandparents there. Highly traumatic; added to their cost greatly. The difficulty was having to navigate the mix of the complex mix and inconsistent mix of Indian and Australian laws.
So if you fit within that narrow parameter, you can do it. You have to be careful. I suggest getting legal advice first because what you don’t want is to be one of those category of couples who are stuck because I can tell you that’s awful, painful, traumatic and costly and likely damaging to your ongoing relationship. So good luck with that. Get advice first.
I’m Stephen Page from Page Provan. Thank you.