Indian surrogacy changes may make surrogacy there for Australians almost impossible

Monday, October 22, 2012

Changes announced recently by the Indian government may make it almost impossible for many Australians to undertake surrogacy there. On the worst case scenario, the only people who might be able to access commercial surrogacy in India are those who are married for greater than 2 years who are living in the Northern Territory.

Anyone contemplating surrogacy in India should get good Australian legal advice first.

This timeline sets out the progression of events.

In 2008, India circulated a draft Assisted Reproductive Technology (Regulation) Bill, which was intended for the first time to regulate IVF clinics, including for the provision of surrogacy services. The Bill was never passed by Parliament, so it never became law.
In 2010, India circulated a new Assisted Reproductive Technologies (Regulation) Bill. The Bill has not been passed by Parliament, and is not the law in India as far as I am aware. The Bills were in part a reaction to the perception that Indian surrogates were being exploited, as discussed in this New York Times opinion piece.
A key change between the 2008 and 2010 Bills was in clause 34(19). In the 2008 Bill, the clause relevantly read:

“Further, the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.”

In other words, India wanted to make sure that intended parents were able to take the babies to the home country of the intended parents.

In the 2010 Bill, this wording was much more specific:

“Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and

unambiguously stating that (a) the country permits surrogacy, and (b)

the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.”

Therefore the requirement of the new Bill was quite onerous: if passed it meant that the country of the intended parents would have to write a letter ( a big ask in itself) and say “clearly and unambiguously” that the country permitted surrogacy (without defining surrogacy) and that the baby could go back to the country of the intended parents.
In April, the Indian Government issued a notice along the lines of the 2010 clause, saying that a surrogacy visa would have to be obtained for intended parents to enter India. I saw then that the change in rules would especially impact on intended parents from New South Wales, Queensland and the Australian Capital Territory.
Since then, the view of clinics and surrogacy lawyers in India is that it has been “business as usual”.
However in the last week there have been two developments that indicate that India is serious about implementing these changes.

The first development is this story in the Dubai based Gulf News in which the Indian consulate in Dubai is quoted as saying that foreigners can only access surrogacy in India if they have a medical visa and then a surrogacy visa.

A new requirement, according to the story, is that the intended parents must be married for a minimum of two years. There is no such restriction in the draft ART Bill, but not all the draft Rules and Regulations were published, meaning that it may have been India’s intention always to exclude the following intended parents:

same sex couples
singles
heterosexual de facto couples

Until now India has not been discriminatory in allowing intended parents to proceed. This is a new area of sovereign risk for those contemplating surrogacy.

It doesn’t appear that the changes are retrospective. In other words, those who are in the system should be able to proceed with their surrogacy. They should always get advice from a good Indian lawyer. If they do not have one, I can refer them to one.

The requirement of the 2010 Bill for the country of the intended parents to provide verification now seems to be the Indian Government’s position. This is especially troublesome in Australia. What is “surrogacy” in the Indian context? It’s unclear, except it appears to be “commercial surrogacy”. Here’s where things get particularly interesting:

There are no Australian national laws regulating surrogacy. The laws on surrogacy are largely State and Territory based. If expatriate Australians seek to undertake surrogacy in India, which they might be able to do, they are not restricted by State laws concerning surrogacy, but are entitled like other Australian intended parents to take advantage of the Australian Citizenship Act 2007, Commonwealth legislation, which provides in section 16(2):

“(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

(a) a parent of the person was an Australian citizen at the time of the birth; and

(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application–the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.”

Just thinking that through, what that means is that for expatriate Australians it may be perfectly legal for them to engage in commercial surrogacy (if it is legal for them to do so in the foreign country in which they reside). However, the Australian Government may not write such a letter.
If the intended parents are either permanent residents of Australia or citizens living in Australia, then it remains confusing. This is because:
- currently in Australia, 7 out of 8 jurisdictions ban commercial surrogacy (except the Northern Territory where there is no ban, except that by virtue of the National Health and Medical Research Council guidelines, commercial surrogacy cannot be offered through an IVF clinic- only traditional commercial surrogacy can occur in effect).
- currently in Australia, 7 out of 8 jurisdictions (soon to be 8, when the Tasmanian changes become law) allow altruistic surrogacy.
- currently in Australia, 5 out of 8 jurisdictions allow international commercial surrogacy (Victoria, Tasmania, South Australia, Western Australia, Northern Territory) and 3 criminalise it (Queensland, New South Wales and the Australian Capital Territory).
Who knows what the Australian government might write about surrogacy.
Who knows what the Australian government might write about bringing the baby back to Australia. The test for citizenship under section 16 is demonstrated intent, as decided by the Federal Court; but the Family Court has commented that illegality or State legislation might determine who is or is not a parent (and therefore as a potential flow on effect whether the child is a citizen); but the Department of Immigration and Citizenship for Australian intended parents has been using a test that is not the law, is not based on any Act of Parliament nor Regulation, is contrary to the position of the Federal Court, and is merely to show a DNA link as to parentage, and is contrary to the Department’s practice for those seeking a child through surrogacy in the USA. If a child has been conceived using donor egg and sperm, or there has been a mistake in the clinic, then the Australian intended parents in India will not be able to take the child home, despite their demonstrated intent to show that they are the parents of the child.

As the Gulf News article states:

“The treatment can be done only at registered ART clinics recognised by the Indian Council of Medical Research (ICMR). Also before couples leave India, ‘exit’ permits must be be obtained testifying that the couple has taken full custody of the child and all liabilities towards the Indian surrogate mother have been fully discharged.”

The last development is set out in the letter from the President of Surrogacy Australia, Sam Everingham to the Indian Consul-General in Sydney. I reproduce the letter in full (and I have highlighted portions in red):

Arvinder S Ranga

Consulate General of India

Level 10, 190 George Street

SYDNEY NSW 2000

RE: Updated Regulations Regarding Travel to India for Surrogacy

Dear Mr Ranga

Thank you for making the time to meet with me today.

Our figures show approximately 400 Australian intended parents are travelling to India each year in the hope of creating a family via surrogacy. In the 12 months to June 2012 it is estimated that over 220 infants through surrogacy in India were awarded Australian Citizenship By Descent, a figure which has been increasing significantly in recent years. Well over half of these infants have been born to same-sex couples, singles and heterosexual couples in de-facto relationships.

By way of documenting Surrogacy Australia’s understanding of the correct approach to application for surrogacy in India I note that under current policies, the appropriate visa will not be granted unless applicants are currently married and have been in that marriage a minimum of two years.

Further the commissioning couple are to provide with their application

a. A letter from the Australian High Commission to the applicant stating that Australia recognises surrogacy and the child/children born will be permitted entry into their country as a biological child/children of the commissioning couple;

b. A copy of their marriage certificate;

c. A copy of the relevant State legislation which shows that overseas surrogacy is not illegal in that State;

d. A copy of their DNA test application;

e. A statement that they are normally resident in one of Victoria, South Australia, Western Australia, the Northern Territory, Tasmania and hence are eligible to undertake overseas surrogacy.

f. A copy of the signed notarised agreement between themselves and the prospective Indian surrogate mother.

The commissioning couple should allow 1 – 2 months processing times for this visa.

There remains great confusion amongst eligible couples regarding visa type to apply for. Correspondence sighted by me from GVV Sarma (Joint Secretary – foreigners) to Shri Amarenddra Khatua, Additional Secretary (PV), Ministry of External Affairs, Government on 9^th July 2012 (F. No.25022/74/2011-F.I) which was copied to all sections in the Foreigners Division states that “the appropriate visa category will be a medical visa”

In light of above Surrogacy Australia would also request that the relevant authorities:

a. Provide us with the current list of ART clinics recognised by ICMR;

b. If the correct visa is a medical visa (see below), then the “Who Can Apply?” instructions at http://www.vfs-in-au.net/medicalattendent.html need to be reworded given commissioning couples are often not undergoing medical treatment themselves. (Instead their surrogate is).

c. To avoid ongoing confusion, reword the IMPORTANT NOTICE on the http://www.hcindia-au.org/consular_passport_visa_oci.html page from

Any person seeking a visa to India for the 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 surrogate parents. Entering into surrogate arrangement under any other visa not sought for surrogacy is punishable under the Indian Law.

Any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of their Australian State of residence ~~permits~~ prohibits overseas commercial surrogacy arrangements 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.

Outstanding issues for the Consulate General to clarify:

1. Should the relevant person apply for an entry visa or medical visa?

2. Should only the biological commissioning parent apply for this visa, and the other apply for a normal tourist visa?

3. What is the penalty under Indian law for entering into a surrogacy arrangement under any other visa not sought for surrogacy?

I look forward to hearing from you regarding the above.

Yours sincerely

Sam Everingham

President

Surrogacy Australia

sam@surrogacyaustralia.org

+61 411 871 800