The Government of India, Ministry of Commerce & Industry, Department of Commerce, Directorate General of Foreign Trade Udyog Bhawan, New Delhi had issued notification bearing Notification No. 11 /2015-2020 Dated: 12th June , 2020 permitting the importing and exporting of human embryos into India.

It is to be noted that several intended parents were unable to import/export their gametes after the Indian Government banned the international import and export of embryos in the year 2015 by Notification No.25/2015-2020 dated 26th October, 2015. By the 2015 notification, the Import policy of the item ‘Human Embryo’ classified under EXIM Code 0511 99 99 has been changed from “free” subject to a ‘No Objection Certificate’ from Indian Council of Medical Research (ICMR)” to “Prohibited’ except for
research purposes based on the guidelines of the Department of Health Research.

It is also worth noticing here that several foreigners had come down to India for the purpose of taking up surrogacy arrangements, but were unable to take back the embryos when international surrogacy arrangements were banned in 2012 for foreign nationals. This could be of good news to prospective parents who have their Embryos stored in India and want to export the same back to their country.

In the past few months, there have been different notifications released by different government agencies about surrogacy for Indian and Foreign Nationals. I thought it is best to compile and post of them together.

http://blog.indiansurrogacylaw.com/wp-content/uploads/2016/05/New-Surrogacy-Information.pdf

In a sudden move, the Government of India represented to the Supreme Court that the Government is not support of surrogacy for foreigners and looks for banning the same. The Government of India, in a hurried move, released information to the Press that it looks for disallowing commercial surrogacy for foreign nationals on late evening prior to the hearing. Also, the Indian Council for Medical Research sent out the following notification to all ART Clinics requesting them not the “entertain” foreign nationals for surrogacy. The communication is found below:

The Government also submitted to the Supreme Court that it reversed the Notification that allows free import of gametes into India from foreign nations except for research purposes although no specific notification is found to that effect.

The Government made the above representations to Supreme Court in the hearing of Public Interest Litigation (PIL) filed by Advocate Jayashree Wad by impleading herself in the Jan Balaz Case (German Couple’s Case). In the last hearing of the same case about 2 weeks back, the Supreme Court had asked the Government to come out with clarity as to how it plans to regulate commercial surrogacy and had asked 14 specific questions on the subject-matter. I am informed by my sources that the Supreme Court expressed its displeasure in the manner by which the Government had careless and hurriedly decided the matter that is subjudice. The case is to be listed next month.

In my personal view, the stand taken by the Government is rather rash and unwary.

Government moves on a matter that is subjudice

The foremost concern is that the Supreme Court was considering various issues related to commercial surrogacy for both domestic and international couples. The Supreme Court had infact gone deep into the matter, trying to ascertain what are the rights of the donors, biological parents and the surrogate mothers and had posed 14 specific questions on the matter asking for the Government’s view on the same. The Government had tried to clear avoid the issue on hand and moved to stop commercial surrogacy for foreigners as an escape route, rather than addressing the issue. The Government even failed to answer the fourteen questions that were posed by the Supreme Court.

Consultative processes disturbed

The Government had asked for opinion/comments on the Assisted Reproductive Technology Bill, 2014 which has been published by the Government. The first reaction of the stake-holders was that the allocated time of 45 day to submit the opinion or the comments was too less to read into the intricacies of the issue on hand. Now, the Government has made the whole consultative process a mockery by disallowing commercial surrogacy for foreign nationals. It is sad to see that the Government has least regard to the opinion the public on the matter of Third-Party Reproduction by decisions that significantly affects the lives of many childless couple.

 

What is the state of the embryos that are already in India?

The Government had submitted to the Supreme Court that the Notification that allowed import of human embryos has been reversed and that human embryos can no longer be imported into India, except for the purposes of research. With this move, the Government stomps on the hope of several families who are in the process of surrogacy. The Indian Ministry of Home Affairs had been issuing “medical visa for surrogacy” even immediately prior to this decision on 27th October 2015. Several foreign couples are in India with valid medical visa at the moment in the process of the surrogacy arrangement. What is the state of the parents who are in the process of surrogacy? What is the status of the embryos that are already in India waiting to be transferred? The Government has a lot on its head to answer now.

The Ministry of Health and Family Welfare, Government of India,  has released a new copy of the Assisted Reproductive Technology (Regulation) Bill, 2014 as part of the consultative process. The copy of the Bill is found below. We encourage the general public to file their comments and suggestions on this Bill.

http://blog.indiansurrogacylaw.com/wp-content/uploads/2015/10/Assisted-Reproductive-Technology-Regulation-Bill-2014-.pdf

A Swiss Court has ruled against a same-sex couple to be considered legal parents of the child born through surrogacy in US. The Couple who had registered their partnership in the US were recognised as legal parents of the child born though surrogacy as per the US law. But once the couple returned to the Switzerland in 2014, the Switzerland Federal Court ruled against acknowledgement of both the parent to be legal parents of the child. Though same-sex marriages are legal in Switzerland, surrogacy is not. It seems that the adoption by a same-sex couple is also not permitted as per the existing laws in Switzerland. That would mean that the parenting by a same-sex couple is prohibited, although their relation can be registered legally. In a country that allows euthanasia, the use of assisted reproduction is highly restricted disallowing egg or sperm donation for ethical reasons. The decision of the court echoes the displaced moral high-grounds that is followed by many European states that do not allow surrogacy. When a country believes in same-sex union, the parenting by the couple must also be seen no differently. The views on surrogacy can be debated, but the Court cannot rule against the recognition of the same-sex parents only because the child was born surrogacy.

Nepal is the latest addition to list of nations that is trying to regulate surrogacy. The Supreme Court of Nepal had come out with a decision to stay surrogacy practices until there are clearer guidelines regulating surrogacy from the government.

Nepal had come up as a popular destination along with Thailand for surrogacy after India had restricted surrogacy to married heterosexual couples. Nepal turned out to be a popular alternative for same-sex couples and single parents from many parts of the world. With Thailand out of the picture after the surrogacy ban, Nepal dominated itself with the same-sex couples and single parents seeking surrogacy in the South-Asian region.

The irony about surrogacy in Nepal was that the Nepal did not allow surrogacy for its own citizens, meaning that the surrogate mother could not be from Nepal and the intended parents also cannot be from Nepal. International Intended Parents sought Nepal for their unregulated outlook towards surrogacy and most of the surrogate mothers were usually from India. When a devastating earthquake had hit Nepal in April 2015 killing about 9000 people, the Israeli Government evacuated the newborn children born through surrogacy from Nepal. Most of the surrogates who got stuck in Nepal during the earthquake were mostly Indian Nationals.

There have also been news-reports that few surrogates in Nepal were actually Nepali woman who had represented themselves to be Indian nationals in order to be surrogate mothers. In fact, this is one of the most important contentions before the Supreme Court of Nepal in the plea for banning of surrogacy.

Nepal’s stay on surrogacy brings a clear void for single and same-sex couples wishing to take up surrogacy in the South Asia region. India does not allow surrogacy for the single and same-sex couples. Thailand has also banned commercial surrogacy.

Thailand has given the official end to commercial surrogacy by bringing into effect the law which was passed in February this year. Thailand was a popular option for international surrogacy with much less regulation. Thailand did not have a law regulating surrogacy and the surrogate mothers were available in abundance. With no regulatory body in place, the industry was flourishing. Thailand’s surrogacy also surged forward when India disallowed surrogacy for homosexual couples. India had introduced a new category of visa called the “medical visa for surrogacy” which required that the intended parents to be a married heterosexual couple married at least for a period of two years.

Thailand’s decision to ban commercial surrogacy came after the controversial baby Gammy case. An Australian couple had deserted one of the twins born through surrogacy after they came to know that the child had down-syndrome. With this case widely discussed in the international media, the Thai Authorities started crackdown operations on surrogacy industry. Another case was exposed where a Japanese single man had fathered about 16 children through surrogacy in Thailand. With these cases in hand, the newly formed military government in Thailand had brought out strict reforms to ban commercial surrogacy, also stating that surrogacy was never legal in Thailand.

Thailand has now imposed restrictions similar to what was introduced in India. The present law requires that those wishing to take up surrogacy in Thailand must be a couple, a man and a woman legally married for at least three years with atleast one of them holding Thai nationality. It also requires that the surrogate mother must have her own children, and must take up the surrogacy with the consent of her husband. Ideally the surrogate mother must be a sibling of the couple. If the surrogate is not a sibling to the intended parents, then there are also few restrictions on who can be the surrogate.

The new law prohibits commercial surrogacy for foreign clients. Offences under the law are punishable by up to 10 years in prison and a fine of up to 200,000 baht (USD 6,200).