This is certainly good news. The Union Women and Child Development Ministry, Government of India is in favour of surrogacy for Single and Gay Intended Parents apart from normal heterosexual couple. The Union Women and Child Development Ministry in its comments to the Health Ministry on the Assisted Reproductive Technology (Regulation) Bill, 2013 has stated that the definition of the word “couple” is narrow and must include everyone irrespective of the marital status.

Number of Surrogacies for Surrogate Mothers

The Union Women and Child Development Ministry has proposed that surrogate mothers should be allowed have four pregnancies, including their own children. The Assisted Reproductive Technology (Regulation) Bill, 2013 had proposed that surrogate mothers should not have more than three pregnancies. The Ministry had also proposed that there should be a two-year gap between every childbirth. The Ministry in its comments stated that women above the age of 21 years can be surrogate mothers, with other criterions such as low Body Mass Index and other medical risks such as cardio-vascular diseases, thyroid problems being taken into consideration.

Compensation to the Surrogate Mother

The Union Women and Child Development Ministry is clearly in favour of monetary compensation for the surrogate mothers. The Union Women and Child Development Ministry had opined that a minimum compensation should be paid to the surrogate mother after the Embryo Transfer is complete, irrespective or success or failure of the procedure. Apart from this, the Union Women and Child Development Ministry also provided that the surrogate mother should be covered for contingencies such as medical risks.

Until now, only two ministries have commented on the Assisted Reproductive Technology Bill, which has been proposed by the Ministry of Health – Directorate General of Health Services and the Union Women and Child Development Ministry. The Ministry of External Affairs and the Ministry of Home Affairs have not commented on the Assisted Reproductive Technology. The Ministry of Home Affairs was the agency of the Government that had introduced the restrictions for entry taking up surrogacy in India by introducing the new surrogacy visa.

Contradictory view from DGHS

The Directorate General of Health Services had commented on the Assisted Reproductive Technology Bill last month with a controversial view that surrogacy in India should be available only for people of Indian Origin and not for Foreigners. The view of the DGHS created much of a buzz in the online and offline space with debates questioning it stand. In its letter, the DGHS had proposed three recommendations on the Assisted Reproductive Technology Bill:

  • Surrogacy in India should be allowed only for Indian citizens and people of Indian Origin
  • Secondly, Surrogacy in India should be taken up only by married heterosexual couple and not single or gay parents
  • Thirdly, a woman can be a surrogate only once in life time

The Union Women and Child Development Ministry has now provided a completely contradictory view from that proposed by the Directorate General of Health Services. We would be required to wait and see whether the Union Women and Child Development Ministry response to the Assisted Reproductive Technology Bill would be accepted and incorporated in the final draft of the bill.

Norway princess surrogacy india

Norway has always maintained a conservative approach to surrogacy arrangements and surrogacy has always been a subject of national debate. The Norway government always discouraged their nationals for taking up commercial surrogacy arrangements. An unconventional development has taken place with these backgrounds with a royal intervention.

Norway’s Crown Princess Mette-Marit had come down to India secretly to help her gay friend and his husband for taking care of the new born children born through surrogacy in India. The gay couple took up a surrogacy arrangement in New Delhi, India; but were unable to come down to India for taking care of the new born twins. One of the parents was an employee of the Palace and a friend of the Crown Princess. The Crown Princess flew down to India immediately with Diplomatic Passport and nursed the children. The Indian Authorities were not informed of the arrival and the staff of the hospital where the children were born took her to be a nanny. A relative of one of the parents later came down to India and relieved the Crown Princess. The new-borns were granted VISA in November 2012, after which the children were taken back to Norway.

The crown princess is said to have acknowledged the national debate on surrogacy but insisted that she was not taking sides over the issue; and that she did what a friend has to do.

Couple of years back, I handled the case of a single mother from Norway who had taken up surrogacy in India and could not take the children back to Norway owing to high opposition from the Norway government. After a long debate with various governmental bodies, she was able to take the child back almost 2 years from the date of the birth of the children. I certainly find this development surprising.

UK India surrogacyA male gay couple who had taken up surrogacy in India had to undergo a traumatic period after the birth of their children majorly due to the indecorous behavior of the Surrogacy Clinic in India. One of the civil partners was from Britan and the other one was from Belgium. The couple had married in Belgium in June 2008. The couple had lived in Belgium and then in India, but after August 2011 permanently resided in the UK.

 The couple desired to start a family of their own and looked for a surrogacy clinic in India for about 6 months. After due research, the couple chose Kiran Infertility Clinic, Hyderabad from out of six other surrogacy clinics in India during 2010. The couple had several rounds of discussion with the Director of the Clinic and strangely were told that the clinic’s policy, ‘in line with the professional guidance in India’, does not allow the intended parents to meet the surrogate mothers. However, the couple went forward and the clinic arranged for a surrogate mother. The embryos were made out of the male gametes of the one of the partners and an anonymous Indian Egg Donor.

In September, a lengthy surrogacy agreement was drawn. A total sum of about USD $ 22,000 was to be paid to the clinic in several installments with an additional $5,000 in the eventuality that the surrogate gave birth to twins. In October 2010 the embryos were transferred into the womb of the surrogate mother. The surrogate mother tested positive for pregnancy and was carrying twins.

 During early 2011, the couple approached Director of the clinic, seeking information on post-birth procedures for taking the child back to UK. However, there was no actual information from the clinic. On 8th June 2011 shortly before the expected date of delivery, the couple received a mail from the Clinic that consent has to be obtained from the Surrogate Mother after six weeks of delivery of the child.  The mail also stated that the time period could be shortened to 3-4 weeks depending on the surrogate mother.  The couple had earlier obtained an opinion from a U.K. Surrogacy Law Firm and found this inconsistent with their opinion.  The solicitor representing the couple wrote to the Clinic Director, proposing that a document shall be drafted by their law firm and that document be read out to the surrogate in her local language and it be signed before a Notary after six months from the date of birth of the children.  The Clinic Director accepted to such an arrangement.

 On 14th June 2011, the surrogate gave birth to twin boys and the couple took full responsibility of the children.  The couple then took the boys to New Delhi for applying for passport before the British High Commission.

Later, the surrogate mother had given a signed declaration that the complete compensation of Rs.3,50,000/- (Rupees three lakhs and fifty thousand only) had been paid to her and there is no further claim from the couple.    She also relinquished her rights over the child. However, this declaration was given prior to completion of six weeks from the date of birth of the children.

On 26th July 2011, the couple e-mailed to the Director of the Clinic the relevant forms that were to be signed by the Surrogate Mother for applying for parental order.  The surrogacy clinic kept delaying the process and couple failed to obtain the signed forms from the surrogate mother.

On 24th August 2011, the Indian authorities issued an Exit VISA and the couple flew to United Kingdom with the boys.  The clinic had not provided the completed form from the surrogate even at that stage. This was followed by persistent querying for the signed form from the surrogate mother.

Later the couple wrote a long letter to the Clinic Director that a formal complaint should be launched if the documents were not produced within a set deadline.  On 16th September 2011, the applicants received a DHL package, purportedly from the Director of the clinic, containing a single sheet of paper on which was printed an obscene gesture. The couple being helpless, tried to trace the surrogate mother, but did not do so, being concerned about invading her privacy.

On 12th December 2011, the couple filed an application for parental order before Portsmouth County Court.  The court directed for CAFCASS Report and the report recommended that a parental order be given without the consent of the Surrogate Mother which has to be given after six week following birth of the child.  The matter was transferred to High Court after a brief hearing for further analysis, on the effect of absence of such consent from the surrogate.

Following this, an enquiry agent was appointed by the couple, who submitted a report that the surrogate mother was not traceable. On recognizing this, the Court instructed CAFCASS legal to act as advocate of the Court on deciding the matter.

The Court framed the following issues to decide the application made by the couple:

 (a)  Whether the twins were carried by a woman as a result of placing in her an embryo and that gametes of one from the couple had been used for creation of the embryos.

(b)  Could the Court dispense with the requirements of obtaining the consent from the surrogate mother following six weeks from the date of birth on the ground that her location could not be traced?

(c)   Should be Court authorize the payments retrospectively in this case?

The Court answered the above issues as follows:

 The Court had decided without hesitation that the embryos were genetically related to one from the applicant couple.  Moreover, the Court did not even require the DNA evidence and was convicted with the similarity of features of the children and father merely based on photo submitted by the couple.

 The most important part of the decision is ratio-decidendi concerning the absence of a consent from the surrogate mother obtained from her six weeks after the birth of the child.  On that account, the court emphasized on the importance of the parental order and that of the surrogate mother.  The observation of the Court has been extracted as follows:

25. It is a very important element of the surrogacy law in this country that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child. The reasons for this provision are obvious. A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world. She is a ‘natural parent’ of the child. As Baroness Hale of Richmond observed in Re G (Children) [2006] UKHL 43, at paragraphs 33-35,

 “there are least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant in this child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child …. The second is gestational parenthood: the conceiving and bearing of the child….The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs…. ”

 So far as gestational parenthood is concerned, Baroness Hale observed (at paragraph 34) that the fact that in English law the woman who bears the child is legally the child’s mother ‘recognises a deeper truth: that the process of carrying a child and giving him (which may well be followed by breastfeeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.’

 25. The act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life. It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give consent to the parental order. That is why the law requires that a period of six weeks must elapse before a valid consent to a parental order can be given.

Further, the Court was convinced that the couple had taken all reasonable steps to obtain the surrogate consent, but was however unable to do so.  The Court observed that “the couple had reported complete trust on the agent/clinic and expected that they would behave responsibly, but it seems that the couple and the twins have been let down very badly.”

 The Court held that very little importance could be given to the consent obtained from the surrogate mother before six weeks from the date of birth of the children.  However, taking the welfare of the children to be paramount consideration, the Court held that the agreement/consent from the surrogate mother is not required as she could not be traced.

 The court also held that the payment made to surrogate mother would be given retrospective authorization. With the above observations and consideration, the parental order was granted in favour of the Gay couple for the twin children.

Though the surrogacy arrangement is initiated mainly due to emotional thrust, the other precautions should not take a back seat and every step has to be taken for completion of paper work and documentation well within the period while the surrogacy agreement is in force.

The full decision is available here.

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.


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:

  1. What are the legal circumstances on which the said notice has been published in the Embassy Website?
  2. 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.
  3. Under which rule/regulation/Act the said notice was published in the website of the Embassy?
  4. Who is the authority who recommended/caused the publication of the said notice?
  5. 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.
  6. Which Authority approved the publication of the said notice? Please provide certified copies relating to the Approval, if any.
  7. 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.
  8. 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.
  9. Has the procedure specified in Question 8 been followed for the publication of the notice?
  10. Which Act /Rule/ Regulation governs the approval and publication of any notice /website in the Embassies of India located abroad.
  11. Which Department in M.E.A. is in-charge and responsible for the drafting of the contents in the website of the Embassy?
  12. Whether there is any Rule/ Regulation/Legislation/Regulation allowing or prohibiting surrogacy in India for foreign nationals?
  13. Which category of VISA is required to be applied for taking up surrogacy in India by foreign nationals?
  14. 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.
  15. What are the supporting documents/certifications required to apply for the VISA for surrogacy procedure in India?
  16. 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?
  17. 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?
  18. 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.
  19. 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.
  20. 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.
I await to hear from the Ministry of External Affairs and the Embassies on this drive to obtain information on international commercial surrogacy in India.


This is the update pertaining to the French case of Dominique Mennessan and Sylvie. The earlier post on the decision of the Court of Appeals is here.

The Supreme Court of France, which is the highest judicial forum in France, (Court of Cassata) had turned down the application by the couple for inclusion of the names of their twin daughters in the French registry. The twins were born ten years ago through surrogacy in the month of October 2000.  Isa and Leah have a birth certificate indicating that American parents are Menesson, but the French Government challenged transcription of these documents. The couple is fighting, since the birth of twins, for that French law recognizes their parentage.

The couple has been struggling for 10 years with the legal procedures for including the names of twin children in the French registry.  The Court of Appeal, too, had not recognised the children to be French citizens. The children were born to an American surrogate mother, Mary.  She gave birth to Isa and Leah from the embryos created from sperm from Dominique and the egg from a friend.

France does not allow surrogacy, practice to be carried by another woman, for a fee, an embryo conceived in vitro. In this case, the embryo has been conceived with sperm from the joint French, Dominique Menesson, and the oocyte from a friend of the couple. Dominique, the husband, however retains a recognition of parentage of their child through official documents issued in the United States.On the birth of the twin children, their birth certificates were prepared in accordance with the Californian Law.  The couple have been considered to be the legal parents as per the United States authorities, but not by the French authorities.

In France, the woman who gives birth to the children is considered to be the legal mother of the child.  This being so, French Law does not recognize surrogacy arrangements.  According to Court of Cassata, the father of the children, Mennessan is the legal father of the child due to the biological connection.  However, the commissioning mother, Sylvie is not considered the legal mother of the children.  For all practical reasons, the children are considered as living with two different parents.

Last week we had an interesting development at the United Kingdom relating to commercial surrogacy. Mr. Justice Headley had pronounced another landmark decision pertaining to surrogacy. Mr. Justice Headley had earlier decided the case of Re: X & Y and also Re: K (Minors) both of which are pertaining to international commercial surrogacy.

The matter relates to a commercial surrogacy arrangement made in Illinois wherein agreements for commercial surrogacy are legal. The agreement is no doubt illegal as per the 2008 legislation in the United Kingdom. Mr. Justice Headley opined that he remains satisfied that “the payment in excess of the reasonable expenses were made in this particular case to the surrogate mother.”

He also opined: “I observe only that ‘reasonable expenses’ remains a somewhat opaque concept. The approach that I have adopted is to treat any payment described as ‘compensation’ (or some similar word) as prima facie being a payment that goes beyond reasonable expenses. It is necessary to emphasize (as comparisons between the USA and Western India graphically illustrate) that no guidance can be gained from ‘conventional’ capital sums or conventional quantum of expenses. Each case must be scrutinized on its own facts.” Mr. Justice Headley stated that it is important every intended parent duly acquaints themselves about the international surrogacy arrangements prior to entering to the same.

With the introduction of the 2008 legislation, the court stated that the welfare of the child is not only the court’s first consideration, but also the paramount consideration. The court weighed and balanced between the public policy considerations and welfare of the child to decide in favour of the welfare of the child. It was stated that the court would be able to withhold an order if otherwise welfare considerations supports its making. “It underlines the court’s earlier observation that if it is desired to control commercial surrogacy arrangements, those controls need to operate before the court process is initiated i.e. at the borders or even before.”

This decision gains importance in view of the growing number of intended parent flying to India for commercial surrogacy. As stated in the decision, it is important the intended parents are well informed about the legal position in India and in UK prior to entering into commercial surrogacy arrangements. It has to be seen on a case by case basis and never there is a general rule.

The official copy of the full text decision is available here.

An interesting development has taken place in Hong Kong.

Mr. Peter Lee Ka-kit, a resident of Hong Kong had triplets through surrogacy in America. Mr. Peter Lee Ka-kit is son of Mr. Lee Shau-Kee, 18th richest man in the world ranked by the Forbes.

Commercial Surrogacy is banned in China and it is a punishable offence in China irrespective of where the surrogacy arrangement is entered into.  The matter is reportedly referred to the police who might be initiating the first prosecution under the ordinance since its introduction in the year 2000.

New York does not allow commercial surrogacy and New Yorkers opt to go for some other place where surrogacy is legal to have children from there. A male gay couple from New York had taken up surrogacy in California. The embryo was created out of the egg from an egg donor and sperm from one of the gay couple. On birth of the child, pursuant to the standard California practice, they approached a court there, along with the surrogate mother and her husband and obtained a pre-birth order naming the gay couple as the parents of the twin to be born. The twins were born in the year 2001 and the names of the gay parents appeared on the birth certificate.

Later, the gay couple broke up. The parent, who is genetically related to the child filed for child support in the New York Family court.  It was argued by the defendant, who was genetically unrelated to the child, that parentage deriving from surrogacy was not recognized in the New York and hence he was not liable to pay the child support. On October 4 2010, Magistrate Rachel Parisi rejected that argument. It was noted by her that there is no public policy exception to the enforcement of judgments from courts in other states. The parentage decision was entitled to recognition in the New York. She also relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement.

This decision is significant for number of New Yorkers who take up international surrogacy. This decision also highlights the importance of having a parental order on birth of the child.

The German Couple who had a tiring journey through the Indian Judicial System in a bid to travel back to their homeland with the twin children finally have crossed the first step. The German Government had granted VISA for the children to be brought to Germany. The Central Adoption Resource Agency (CARA) had earlier agreed that it would issue a No Objection Certificate for the adoption of the children. With what can be seen, the children have to be adopted (or something similar) by the German Couple in Germany. The Union of India had given the Exit Permit for the children to be taken to Germany.

The children remain stateless yet. The Union of India had only granted the Exit Permit to the children and not a citizenship. I do not see a change of scenario as far as nationality is concerned. However, the change in attitude of the German Government is seen by issuance of the VISA. The German Couple now have an opportunity to fight for their rights at judicial forums in Germany for the citizenship of the children. The German Government had always remained steadfast to its view that familial ties arising out of a surrogacy agreement cannot be valid in law. German Government was also very precautious that the Jan Balaz’s case should be a precedent for other Germans to take up surrogacy abroad.

The German Couple may be required to adopt the twin children in Germany. This would pave way for the twin children to obtain German Citizenship. However, the Balaz Family has percolated through the first step with the guidance and aid of the Supreme Court of India.

When the appeal was filed before the Supreme Court of India, the court did not have much in its hands as the issue largely involved the policy of two states, Germany and India. Germany and India had conflicting policies with regard to surrogacy.

India was unable to grant citizenship to the twins born through surrogacy. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be Indian Citizens at the time of birth of the child. In the case on hand the children did not have an Indian National Parent. The contention of the German Couple was that the children born to an Indian surrogate mother using the gamete from an Indian anonymous egg donor is India; and that the surrogate mother was required to be regarded as the legal mother of the children. This contention had got the sympathetic eyes of the High Court of Gujarat, which agreed that the surrogate mother should be regarded as the legal mother of the child. The Gujarat High also directed the Union of India to grant citizenship and passport for the children enabling them to travel abroad.

The scenario took a complete change when the Union of India rushed to the Supreme Court of India challenging the verdict of the High Court of India. The Supreme Court of India seemed unmoved by the plea of the German Couple. The Solicitor General had time again stood stead fast to his argument that children born to a surrogate mother cannot be provided with Indian Citizenship.

I personally feel that the arguments which could have strengthened the stand of Union of India, but which was not presented is as follows:

(a) The Supreme Court of India in its earlier decision of Baby Manji (Japanese baby) held that the surrogacy agreement is valid in law.

(b) Any basic surrogacy agreement is required to contain the clause that the surrogate mother relinquishes her rights over the child, which is born to her.

(c)  The surrogacy agreement has to be enforced by a court of law. In the absence of any law to the contrary, the surrogacy agreement should control the conduct of the parties and a contrary view cannot be taken.

(d) Where the court takes an opinion, which is unfounded in law and in the surrogacy agreement, it would amount to legislating of a new principle.

(e) Concluding, in absence of law to the effect that the surrogate mother is the legal mother of the child, the court cannot bring out this new theory.

(f)  India does not have a legal mechanism whereby the parental rights of the surrogate mother would be transferred to the intended parent.

However, the above argument was not presented before the Supreme Court of India in support of the Union of India.

The Supreme Court of India successfully guided the German Couple through the legal maze. The Supreme Court of India had also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justices G.S. Singhvi and C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard.