Wednesday, January 16, 2013

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:


Subject:                 Regarding Surrogacy Issues involving Foreigners

With reference to the above mentioned subject this is to confirm that the Government of India, Ministry of Home Affairs, New Delhi has issued clear guidelines pertaining to the foreign nationals intending to visit India for commissioning surrogacy.

As per the guidelines laid down by MHA, New Delhi, below mentioned features should be followed in case of surrogacy related to foreigners:

1.       Tourist visa is not the appropriate visa category and such foreigners will be liable for action for violation of visa conditions.  The appropriate visa category for commissioning surrogacy is a medical visa.

2.       The foreign man and woman intending to commission surrogacy should be duly married and the marriage should have sustained for at least two years  Please also note that current  Indian laws do not recognise gay marriages.

3.       The couple commissioning surrogacy should be in the possession of a letter from the Embassy of the foreign country in India or the foreign ministry of the country stating clearly that:

a.       The country recognises surrogacy;

b.      The child/children to be born to the commissioning couple through the Indian surrogate will be permitted entry into their country as a biological child/children of the commissioning surrogacy.

4.                       The couple commission surrogacy is required to furnish an undertaking that they would take care of the child/children born through surrogacy.

5.       The couple should produce a duly notarised agreement between the applicant couple and the prospective Indian surrogate mother.

6.       The treatment concerning surrogacy should be done only at one of the registered ART clinics recognised by ICMR.

7.       The foreign couple before leaving India for their return journey would require exit permission and should be carrying a certificate form the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and the liabilities toward the Indian surrogate mother are fully discharged as per the agreement.  A copy of the birth certificate(s) of the surrogate child/children will be returned by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.

 

You are therefore hereby ordered  to ascertain all the above mentioned details before commissioning the surrogacy cases of foreigners and not to accept any case for surrogacy if the conditions of no. 1 to7 of this letter are not fulfilled by the foreigner.  Contravention of this order                   may hold you liable for legal action under the Foreigners Act 1946.  Also you are hereby informed that  because of noncompliance of this order on your part if in future any complication arises in respect  or surrogate baby’s nationality and their parenthood, you will be held responsible for it.

 

Further you are directed to provide list of foreigners with the details of their nationality, visa, passport, etc. who have  already registered with you for commissioning surrogacy to this office.

 

Yours
Country
 
I know this also sounds obvious, but the Indian approach is for the "country" to recognise surrogacy. Despite India also being a federal system, there has been no recognition of the Australian federal system. Australia as a country does NOT recognise surrogacy. It only happens with each separate State and Territory. The only formal recognition at the Federal level is of state and territory parentage orders being made- which all necessarily involve non-commercial or altruistic surrogacy, and only apply in Queensland, NSW, ACT, Victoria, SA and WA. Parentage orders cannot currently be obtained in Tasmania and the NT.
ICMR
 
There is also a new requirement since 9 July requiring the clinic to be registered with the Indian Council of Medical Research. This arbitrary approach was without any consultation with the Indian clinics- because at the time of the change, NOT ONE clinic was registered. I am informed by my colleague Amit Karkhanis that clinics are now being registered.
 
The future
 
I am of the view that for those Australian intended parents for whom it is legal to go to India that they will have second thoughts. I expect that there will be an upsurge in demand for altruistic surrogacy in Australia (which is often cheaper and much easier than going overseas. Don't believe me? Ask me.), as well as increases in demand for Thailand (also a regulatory worry) and the USA. The USA it must be said offers a clear choice- no regulatory uncertainty (depending on the state), transparent processes, the ability to have an ongoing relationship with the surrogate, finding out the genetic history of the donor (although I will blog separately about the vexed issue of donors) and the bonus of the child having US citizenship as well as Australian.
 
I also expect that Aussie intended parents will go to the more exotic locations- or as a colleague of mine said to me- the weirds and the wonderfuls- Ukraine, Republic of Georgia, Uganda, Kenya, and Mozambique, and now I have heard the Republic of Cyprus. Except for Cyprus, none of these I expect will welcome same-sex intended parents. In Uganda after all the death penalty was recently advocated for those engaging in gay sex acts.

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  3. Doctors at Kiran Infertility Centre that gets around 120 foreign nationals for Surrogacy India say the move will be a drain on the economy. Dr Samit Sekhar, chief embryologist and surrogacy and IVF program director, said that as per the new directive, except a foreign "man and woman" who have been married for a period of at least two years, no one else will be eligible to have an Indian surrogate bear their child.

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  4. The concept of surrogacy is relatively new in India. Also, people in the country avoid discussions on sperm and egg donations. So the changes in the regulations will not help the international tourists visiting the country to access surrogacy.

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