Monday, April 10, 2017

It may not be for long: Indians going to India for surrogacy

Amongst the reversal in the last year or so in India to apparently prevent anyone undertaking surrogacy there, what was overlooked is that there is a small bunch of people outside India who can still undertake surrogacy there: fellow Indians. But in all likelihood that won't last long.

A recap on history


India started surrogacy in a big scale in about 2007. It then grew explosively- and was estimated at its height to be a billion dollar industry.

But then the Indian government, embarrassed by bad stories, started changing the rules:

  • In April 2012, India started to require foreign intended parents to obtain a surrogacy visa. At first this was enforced inconsistently.
  • Then in July 2012, only publicised in October 2012, India required foreign intended parents to be married, and for surrogacy to be legal back home, and that they could take the baby home.
  • In 2014, following the Baby Gammy saga, there was a crackdown on Australians undertaking surrogacy there- making it very difficult for Aussies to undertake surrogacy in India. Again there was inconsistency in approaches.
  • In August 2015 the Nepal Supreme Court banned surrogacy there. The evidence in the case was that Nepali women were travelling to India to be surrogates, and that Indian women were travelling to Nepal to be surrogates.
  • In December 2015, in response to a similar case in the Indian Supreme Court, the Indian government announced that foreigners could not undertake surrogacy and that surrogacy would not be commercial.
 The current rules of the Indian Council for Medical Research require surrogacy to be altruistic- but surrogates are entitled to be compensated.

The 2016 Bill


In August 2016, the Indian Cabinet announced a Bill to restrict surrogacy in  India. This was a significant change from an earlier Bill that had been around in one form or another since 2008, but never enacted. The 2016 Bill requires:

  • surrogacy is restricted to married couples only
  • who are Indian citizens
  •  where one or both have medical infertility
  • surrogacy to be altruistic (with a much stricter definition than any Australian State)
  • the surrogate has to be a close family relative.
It seems that Non-Resident Indian's (NRI's) will be banned from undertaking surrogacy under the laws, but  the Bill on its face does not make that clear.

The Bill was introduced to Parliament in November last year and since then has slowly wended its way through the system. The Modi government has made plain that it wants the laws passed- and when that happens, the rules will change for NRI's.

NRI's


Currently NRI's can undertake surrogacy in India, just like any other Indian citizens. The tricks for them are to comply with the law in India, the law in Australia, and follow migration rules to ensure their baby can come to Australia. This might mean a delay of months between when their baby is born and when their baby can join them in Australia- in the meantime having their baby cared for by extended family in India.

POI's


Persons of Indian Origin (POI's) however cannot undertake surrogacy in India. Although they appear to be Indian, identify as Indian, and may indeed have recently been Indian citizens, because they are not Indian citizens, they are like everyone else: they cannot undertake surrogacy there.

The unknown factor is if Indians living in Australia undertake surrogacy in India whether they will be caught during any change. If they do- the Australian government is unlikely to come to their aid. They are, after all, not Australian citizens.

Going overseas for surrogacy


Depending on where they live in Australia, those going to India might be doing so legally or committing a criminal offence. It is best to get expert legal advice on this first. I have advised a number of Indian couples who have undertaken surrogacy in India.

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