Monday, April 9, 2012

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.

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