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 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.

Surrogacy Swizz Federal CourtA 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 in SurrogacyNepal 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.

Israeli Couples returning with the newborns when devastating earthquake hit Nepal

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 Bans surrogacy

Thailand Bans 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).

baby-silhouette-hiThe Australian Couple who had deserted the child born through surrogacy in Delhi in 2012 had come out with the theory that the child was not abandoned or deserted, but the child had been given in adoption to a close family friend of theirs. The adoption theory is highly improbable.

  • Child did not have any Citizenship: The Australian Couple refused to apply for Australian Citizenship for the child born through surrogacy and the Australian officials’ version is that they were unable to help the child as the child was not an Australian citizen. They would be able to grant citizenship for the child only if an application for grant of citizenship was made. Either way, the child was not accorded Australian Citizenship.
  • The child does not qualify for an Indian citizenship as the child is not genetically related to a Indian national. Further, the child had no link/relation with an Indian citizen, who is in a position to apply for Indian Citizenship for the child.
  • In India, unlike the United State of America or several other nations, the child is not granted citizenship merely because of birth within the Indian Borders. The child must a parent holding an Indian Nationality.
  • For all practical purposes, the child was stateless at the time of birth. Or atleast the child did not hold an Indian Citizenship or Australian Citizenship during the time of adoption.
  • If the child has to be adopted as per Indian laws, the child must be a citizen of India. The adoption formalities cannot be made for adoption of foreign national in India.
  • If such an international adoption has in fact taken place, then it must be governed by the International treaties on adoption such as the Hague Conventions. It can be presumed that the adoption formalities must in fact take a much longer time than the time it had taken. Even in that case, how can those treaties be applicable to a child which does not hold Indian or Australian Nationality.

The theory of adopting this child is in fact highly questionable and improbable. International Media has taken keen interest on the issue. ABC even ran a documentary on trying to locate the child. There has been constant fear that the case of child trafficking as money could have changed hands. Indian media has not been giving enough importance for the issue for reasons best known to them.

The Indian Government can file against the Australian Couple who had left behind the child in India, while taking the twin under Section 317 of the Indian Penal Code:

317. Exposure and abandonment of child under twelve years, by parent or person having care of it.—Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.
The Indian Government has shown little interest in the possible case of child trafficking and has failed to protect the interest of the child. India must launch action against the couple who had abandoned the child in India.
Netherlands clarifies on surrogacy

The Dutch Government has clarified its stand on surrogacy with a publication of information pertaining to surrogacy on its official website – Netherlands is much known for having a tolerant policy towards several issues including drugs, prostitution and euthanasia. In 2001 Netherlands became the first country to legalize same-sex marriage. But Netherlands is not adopting a similar liberal view towards surrogacy.

In 2014 the Netherlands government had set-up a commission to inquire the extent and impact of surrogacy arrangements, and to also decide if the country requires a special legislation on surrogacy. Presently Netherlands does not have a specific legislation on surrogacy.

Like in several European Nations, altruistic surrogacy is permitted in Netherlands. The childless couple can look for a surrogate mother from their friends circle or any of their relatives, but cannot advertise such requirement. Also the surrogate mother may be compensated for the expenses. It is understandably clear that the surrogate mother cannot profit from the surrogacy arrangement.

Use of egg donor prohibited
As per the 1998 medical guidelines that has published the embryo that be transferred to a surrogate mother must be genetically related to the intended parents only. That would mean that egg donors cannot be used for a surrogacy arrangement.

Netherlands would not issue document for obtaining medical surrogacy
Netherlands made it clear that no letter would be provided by the Dutch Embassy that would enable a Dutch National to take up surrogacy in India which is prerequisite for obtaining a Medical Surrogacy Visa for taking up surrogacy in India. As per the Dutch laws, the surrogate mother being the birth mother of the child, is regarded to be legal mother of the child. If the surrogate mother is married, the surrogate mother’s husband is regarded to be the legal father of the child. So, if an application is made to Dutch Consulate for citizenship for child born through surrogacy, the same would be rejected. For this reason, request for letter supporting the medical surrogacy visa of a Dutch National would be categorically denied by the Dutch Consulate.

Transfer of parental responsibility to the intended parents
The information released by the Dutch Government also clearly described how the parental responsibilities can be transferred from surrogate mother to  intended parents after the birth of the child. The surrogate mother has to provide declarations that she is willing to give up the child and she had received any payment for the same.

With the consent of the Child Protection Board, the intended parents can take over the custody of the child. The Board shall take into consideration if the intended parents have any criminal record, their capacity as parents and may also include a DNA test.

The intended parents can then move the court to obtain an order to be appointed as a guardian of the child. After a period of one year, the intended parents can move the court again for obtaining an order legalizing the adoption of the child by the intended parents.

We have obtained parental orders for single parents from Netherlands taking up surrogacy in India few years back. The orders were India’s first parental orders decided by an Indian Court. The legal position in Netherlands was in a much nascent stage at that point of time. I would try to peruse the legal position now and try to make a write-up on the same.