Few of my colleagues at the American Bar Association had expressed concern over the changing circumstances for surrogacy in India. The Indian Embassies in various countries have published the following notification stating that there is a special category of visa called the “Surrogacy VISA.” However, there is no clarity from the embassy as to what are the requirements for obtaining the new VISA. The basis on which the new VISA category has come into force is a matter of question as there is no special legislation on surrogacy in India.
Any person seeking a visa to India for purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country permits surrogacy 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.
INSTRUCTIONS FOR VISA FOR SURROGACY ARRANGMENTS
This is to bring to notice that any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of his/her country permits surrogacy 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.
Further, this notification left commissioning couple perplexed as to what are the requirements to be fulfilled to take up surrogacy in India. Without proper information from the Indian Embassies, several intended parents have been unable to satisfy the authorities on the documentation for obtaining the new surrogacy VISA. Many Indian Embassies also required specific letter from the Government which states that surrogacy is recognised in their country and that the country would allow the child born through surrogacy back into their nation. This proves challenging as no Government would provide such a letter at a preliminary stage and grant of citizenship for children born abroad allows depends on the circumstance surrounding the birth.
I had taken the initiative to investigate over this matter and sought clarity over the regulations based on which such notifications have been issued. As part of the initiative, I wrote to Ministry of External Affairs and various embassies that have published such Notification as the above.
The questions posed to the Ministry of External Affairs are as follows:
- What are the legal circumstances on which the said notice has been published in the Embassy Website?
- Please provide copies of rules/regulation/Gazette notification/legislation by which the above-mentioned notice has been published in the website of the Embassies/High Commission of India.
- Under which rule/regulation/Act the said notice was published in the website of the Embassy?
- Who is the authority who recommended/caused the publication of the said notice?
- Please provide the certified copy of the official communication from the Authority recommending/causing the publication of the said notice in the website of the Embassy and/or Official Gazette.
- Which Authority approved the publication of the said notice? Please provide certified copies relating to the Approval, if any.
- Which authority approved the publication of the said notices in the websites of the embassies? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
- What is the general procedure to be adopted for approving and publishing a similar notice/advisory in the website of the Embassies/High Commission of India? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
- Has the procedure specified in Question 8 been followed for the publication of the notice?
- Which Act /Rule/ Regulation governs the approval and publication of any notice /website in the Embassies of India located abroad.
- Which Department in M.E.A. is in-charge and responsible for the drafting of the contents in the website of the Embassy?
- Whether there is any Rule/ Regulation/Legislation/Regulation allowing or prohibiting surrogacy in India for foreign nationals?
- Which category of VISA is required to be applied for taking up surrogacy in India by foreign nationals?
- What is the procedure for obtaining the VISA for taking up surrogacy arrangement in India? Please furnish copies of the related Rule/ Regulation/Legislation/Notification pertaining specifically for VISA for surrogacy procedure in India.
- What are the supporting documents/certifications required to apply for the VISA for surrogacy procedure in India?
- If any letter is required from any Government/autonomous agency of the country of the Foreign National, what should such letter/Certification contain for the satisfaction of the Indian authorities when applying for VISA for surrogacy procedure in India?
- If any letter/certificate is required from any Government agency/authority for obtaining VISA for surrogacy procedure in India, and if the Government Agency/Authority is failing to provide such documentation/certification, what other documentation would be required to be submitted?
- If any documentation is required, which Rule/Regulation/Legislation/Gazette Notification etc stipulates that foreign intended parents seeking surrogacy in India have to provide such documentation as stipulated in Question 17 above.
- How many VISA applications have been received till date where the applicants have stated “surrogacy” as their purpose of visit? Please specify the origin country, category of the VISA applied for, Year wise Split-up and the result of such applications.
- Till date, how many “EXIT VISA stamping” have been done for children born through surrogacy in India? Please provide year-wise split-up along with the records on the citizenship of the child/applying parents wherein application for EXIT VISA stamping has been received.