Surrogacy in India

Surrogacy in India

In this video, Award-Winning Surrogacy lawyer and Accredited Family Law Specialist, Stephen Page discusses everything you need to know about 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 get asked from time to time, Oh, yeah, India is the place to do surrogacy.

No, it’s not, not for most people. If we go back a dozen years, sure. If we go back to the early 2010s, India was the dominant place for Australians to do surrogacy. At a time when only 10 or 20 children were born in Australia via surrogacy. Over 200 were born in 2012, for example, in India.

But things changed, and it wasn’t things changing here. Our legal settings were set in the early 2010s in most of Australia, and in Queensland, New South Wales, and the ACT for example.

The laws were quite clear, don’t engage in overseas commercial surrogacy, and there’s variations of those laws in South Australia, Western Australia, and the Northern Territory.

So you would think then that Australians wouldn’t have gone to India. Well, they did. Did they ever get prosecuted? No. But why isn’t surrogacy available to Australians now in India?

Well, it’s available to one category of Australians, maybe in limited numbers, but not to anyone else, and that’s because the Indians decided that they wanted to rein in surrogacy for foreigners, and you can’t blame them. There was the Japanese couple who were having their Japanese child via surrogacy in India who split up, and neither wanted the child.

So, just think of the prospects that a Japanese child would be born stateless in India, and then potentially have the rest of its life in an orphanage in India where no one will want that child and be subject to abuse and neglect for the rest of its life.

Luckily, one of the grandmothers said, I want the child, then Indian authorities wouldn’t let the child go, and it became a major court fight and played out in the media until eventually the child went to Japan.

Then in about 2012, 2014, we had the Norwegian woman who had twins born in India, and she wanted to take them back to Norway, and Norway said, Well, the surrogate’s the mother, you’re not, and India said, Well, the intended mother is the mother, the surrogate is not, and so they got stuck.

They got stuck in India for a couple of years. So India started by administrative action, saying, Well, hang on, you can’t do surrogacy here unless we know that it’s lawful to do it back home, and you can get the child back home.

They just didn’t want to have these headlines embarrassing India throughout the world. Then in 2014, a story broke in Australia about a couple from Western Sydney who had twins in India, and they had a boy and a girl.

They didn’t like the gender of one of them and so the child was then, to use the jargon, adopted out by relatives. Well, the Chief Justice of the Family Court of Australia said at the time, if the story was true, that was a clear case of child trafficking.

Well, lo and behold, India brought in special rules just for Australia. If you’re Australian, you couldn’t do surrogacy in India, and that was in 2014. They tightened up the rules again in 2016.

So in effect, from 2016 onwards, it was almost impossible for foreigners to do surrogacy in India. The people who could do surrogacy in India at that point from Australia were migrants from India. So they were either permanent residents in Australia who remained Indian citizens, or they had taken up Australian citizenship.

India doesn’t recognise dual citizenship, so it’s not like Australia. In Australia, you can be a citizen of multiple countries, but not in India. You’re either an Indian citizen or you’re not. So if you take up Australian citizenship, you are no longer an Indian citizen.

However, India has, since the 1950s, had a special category called OCI, Overseas Citizens of India. They’re no longer citizens of India, but they have special characteristics in India. For example, they can buy land. As a foreigner, as an Australian citizen, I can’t buy land in India, for example, but an OCI can.

And so in 2021, when India brought in its current legislation to deal with surrogacy, which restricted surrogacy to availability to single women or heterosexual married couples and required that surrogacy be altruistic, the people who were available to do it had to be Indians, and they had to get approval from the local authority in India.

So one might think from that, well, foreigners can’t do surrogacy, clearly. But what about overseas citizens of India, OCI’s, and the law was pretty unclear. So it was unclear about whether OCI’s from Australia, for example, could do surrogacy there. But what have I seen?

Those numbers of over 200 children a year being born in India crashed about three years ago to zero, and yet in the last couple of years, we’ve seen about five children a year being born in India.

The only explanation that that can be occurring, because these are applications to the Australian Department of Home Affairs for Australian Citizenship by descent, which means that the child has an Australian citizen parent, that the people who are accessing surrogacy in India now are Australian OCI’s.

So it seems as if you were an OCI living in Australia, you may well be able to access surrogacy in India, provided, of course, that you are a heterosexual married couple or you’re a single woman. For others, India is not available. Forget it. Look at somewhere else. But for OCI’s living in Australia, it seems you can access surrogacy in India.

Thank you.

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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