Regulatory worries from India

The other night I was interviewed by the ABC for their radio show, AM, about the changes in India. The ABC report is here. My interview can be seen and heard from here.

The point that I made to the ABC is one that I have been making for months now to clients, which is that India is changing the rules on surrogacy for Australians, that the rules are unclear, and that India has regulatory risk.

This is what we do know:

• In 2008 and then in 2010 a draft Assisted Reproductive Technology Bill was circulated in India. The first thing that must be said about this is that it was a BILL, not an ACT- it is only a proposal and is not a law of the Indian Parliament. As far as I know, it has never passed Parliament.
• This bill proposed that  those from outside India accessing surrogacy needed to have a letter from their home country saying that surrogacy was legal back home, and that they could bring the baby home.
• The obvious problem with all of that for Australians was as to whether or not the Australian government would write any letter, and if it did, whether it would cover the last two elements. I have written seeking an answer from Attorney-General Nicola Roxon, but I await a reply as to whether such a letter would ever be written and of so what it would say.
• Another obvious problem was to identify the home country. If a person is living in country A, but is a citizen of country B, which country is supposed to write the letter- that to which the person is a citizen but does not reside, or that in which the person lives but is not a citizen? What if a couple live in country A, but one is a citizen of country A and the other of country B? Does country A write about both of them or only about its citizen? These are not esoteric questions. I have already had clients who have asked me this question and for the moment at least I don’t know the answer.
• On the last element, the practice of the Australian Department of Immigration and Citizenship is quite clear- to establish citizenship by descent of any Australian child, a DNA needs to show a genetic link to the Australian Parent. I might mention at this stage that this test is NOT the law, and is contrary to a ruling of the Federal Court, but I am told by noted migration agent Roman Deauna that it remains the practice applied by the Department to children born via surrogacy to Australians in India.
• But what is “surrogacy”? Australia has the half-pregnant answer (if you excuse the pun). For some reason our politicians believe that the halfway measure of non-commercial surrogacy (or as we call it in Australia, altruistic surrogacy) is OK, but that commercial surrogacy is not OK (except in the NT, where limited commercial surrogacy can occur). This question is important, because India does not define what “surrogacy” is. However it appears clear that India considers “surrogacy” to be “commercial surrogacy” not “commercial and non-commercial surrogacy”.
• In 5 of 8 jurisdictions in Australia, while it is illegal to engage in commercial surrogacy in that jurisdiction (except in a limited way in the NT), it is legal to engage in commercial surrogacy overseas. By contrast, it is illegal to engage in commercial surrogacy overseas for those in Queensland, NSW and the ACT.
• In April, as I posted here, India changed the rules, requiring the letter to be obtained from the Australian government and for intended parents to obtain a medical visa. There seemed to be no legal basis for the change, but nevertheless the change happened.
• Then things seemed to settle until October. In reality, they changed on 9 July 2012, when the Indian Government changed the policy again, but did not announce it until October! I blogged about it here.
• The big change was that although the draft ART Bill recognised that singles and couples could access surrogacy, now India wanted to exclude most Australians who were seeking surrogacy there. Only those who were married for 2 years need apply- all others miss out. Therefore gay and lesbian couples, singles and those in de facto relationships would completely miss out.
• It also appeared to me that because of the requirement that surrogacy had to be “legal” that only those living in the NT need apply. People who lived in Victoria, Tasmania, SA and WA while they might legally engage in commercial surrogacy overseas nevertheless would still be committing offences back home if they were to engage in commercial surrogacy. Surrogacy in the Indian context therefore was not “legal”.
• I was concerned that India would therefore limit Australians to those living in the Northern Territory who were married 2 years.

I learned today from Mr Sam Everingham the President of Surrogacy Australia, that India is issuing medical or surrogacy visas for those from Victoria. This is of course only for those who have been married for 2 years. How long this will last is not known. It could change tomorrow. I do not know whether India is adopting the same process for those living in Tasmania, SA and WA. I do not know if this means that the Australian government is writing the magic letters demanded by India.

Pity those poor people who thought they were in the clear, and after 9 July but before late October signed contracts in India and are waiting for their babies. For them the wait and uncertainty must be agonising.

The Deputy Commissioner of Police for Special Branch in Mumbai had this to say just before Christmas, signalling a “get tough” attitude, demanding the names and details of clients of surrogacy agencies: