Monday, October 22, 2012

Indian surrogacy changes may make surrogacy there for Australians almost impossible

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 9th 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.
TO
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
+61 411 871 800
 

14 comments:

  1. according to the doctors and lawyers in India there are no such policies which have been announced by ART or ICMR.
    thanking you
    bp makharia
    info@surrogacyinindia.co.uk

    ReplyDelete
  2. Very nice article and very informative. If you are looking for surrogacy services in India, we can help: http://indsurrogacy.com/

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  4. To be completely honest with you, IVF success rates aren't good. Although I can tell you that we did fall pregnant in our first cycle, this isn't the case for the majority of couples. The older you are, the less likely it is that you will conceive. With regard to women under thirty five the average rate of success is just under 30%. This goes straight down from there to just under one percent for women over 44 years of age. These are harsh statistics. Effectively, what this means is that more than sixty-six per cent of you will not be successful and in the scenario in which you don't have any more embryos you will be requested to withstand the expense and stress of another hormone injection cycle.
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  5. Such a great information I agree with every thing about this post.
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  6. Let's call it biological colonialism in reverse: Chinese couples are using IVF and rented American wombs to make new US citizens when the baby is born here. From the Global Times story: West Coast Surrogacy, in California, has worked with. If you are thinking to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

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  7. Surrogacy is the arrangement by which a woman conceives, carries and delivers a child for another couple or individual. This woman is known as a surrogate mother or a gestational carrier. If you are thinking to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

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  8. I agree with you, but I'm curious: The most common objection I hear from people I know who are pro-life is that an impotent couple who wants a child can get the embryo implanted in herself. I maintain that it's wrong, but the recourse I fall back into is natural law theory when asked to explain (which is perfectly fine, but in my experience not that convincing). So are there any more concrete reasons to explain why that's wrong? Here i suggest peoples to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

    ReplyDelete
  9. The procedure is identical to a frozen thaw embryo transfer ET cycle. For young women, we can transfer the embryos in a natural cycle, 2 days after ovulation. For older women, we need to downregulate with GnRH analog from Day 1, and then prepare the uterus to accept the embryo with exogenous estrogens and progesterone. The procedure is non-surgical, and there is no risk involved.
    What about confidentiality?
    In our clinic, we handle embryo donation like a closed adoption. There is no contact between the donating couple and the recipients, who never see each other. The recipient couple does not even need to inform their obstetrician that they achieved their pregnancy through embryo adoption.
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    ReplyDelete
  10. I agree with you, but I'm curious: The most common objection I hear from people I know who are pro-life is that an impotent couple who wants a child can get the embryo implanted in herself. I maintain that it's wrong, but the recourse I fall back into is natural law theory when asked to explain (which is perfectly fine, but in my experience not that convincing). So are there any more concrete reasons to explain why that's wrong? Here i suggest peoples to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

    ReplyDelete
  11. This is a cliché that is both inaccurate and demeaning. Women who elect to serve as surrogates are engaged in perhaps the noblest of endeavors —helping others to build strong, loving families. The typical surrogate is a thoughtful, educated woman who appreciates the fact that, for her, pregnancy and childbirth are priceless gifts that can contribute to the happiness and fulfillment of others. No woman should become a surrogate simply for economic reasons — on the contrary, FINANCIAL stability is a requirement for candidates for surrogacy. The idea that women are “forced” into having a baby for money has no basis in reality. They become surrogates to help build a family for someone else.
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