Pakistan surrogacy india

Pakistan found itself in the unlikely company of India in the group of nations that require a special legislation on surrogacy to deal with complex issues of domestic and international surrogacy. There is no special legislation on surrogacy in Pakistan, and the Lahore High Court decided that surrogacy is neither allowed nor permitted.

Pakistan’s Rawalpindi Bench of the Lahore High Court decided the first case involving a surrogacy arrangement and subsequent parental rights that arose from it. The crux of the facts of the case is that the biological mother, Farzana Naheed, claims complete parental rights over the child, Fatima, under the ground that she was the wedded wife of the biological father when the child was born. The alleged Biological Father of the child, Farooq Siddique, in his late 50s, claims that he had entered into a surrogacy agreement with the biological mother, and that the child was born through surrogacy. He further claims that the child is not genetically related to the biological mother, Farzana.

With this background, the biological mother filed an application under the Code of Criminal Procedure for the custody of the child in the Sessions Court. The Sessions Court transferred her custody to the mother two weeks after the birth of the child. The child is now is now eight years old and her legal status is still in limbo.

The alleged Biological Father of the child, Farooq Siddique, then moved to the Rawalpindi Bench of the Lahore High Court on appeal and presented the surrogacy agreement to the Court to assert his claim over the child. The High Court hearing a case on surrogacy for the first time, said that there was no law on surrogacy in Pakistan. The court further stated that even if there is a law that allowed surrogacy in Pakistan, there is no material evidence to prove that the Siddique is the biological father of the child. Siddiqui had alleged that Naheed and her relatives had tried blackmailing him for more money while she was pregnant. Contrastingly, the court also did not accept the fact that the marriage took place between the biological mother and Farooq Siddique as the biological mother could not prove her marriage to him in a satisfactory manner.

The court stated that the custody of the child should rest with the biological mother Naheed and that her poverty should not stand in her way for exercising parental rights over her child. Further, since there is no special legislation on surrogacy existing in Pakistan, the Court had no legal material to accept or reject the prayer of the biological mother and decided the case as in the case of a normal petition for custodial rights.

Ministry of Home Affairs declares that appropriate visa category for Intended Parents for traveling to India for surrogacy is medical surrogacy visa.

I have finally heard from the Ministry of Home Affairs (Foreigners Division) pertaining to RTI Application filed by me dated 10.07.2012 on the surrogacy VISA category. From the reply, I see that the Ministry of Home Affairs had addressed a letter to dated 09.07.2012 bearing File No.25022/74/2011-F-1, laying down the procedure for grant of VISA for foreign nationals, intending to visit India for surrogacy arrangements. Interestingly, the communication has been dated 9th July 2012, just one day prior to the date of my Right to Information Application. However, the notification pertaining to surrogacy has been on the websites of the Indian Embassies for almost six months now.

The following instructions were issued to the Ministry of External Affairs and requested to be circulated to all Indian Missions abroad as per the communication in File No.25022/74/2011-F-1.  It is stated in the reply to RTI Application that the Home Affairs Minister has approved the Guidelines issued by the Ministry of Home Affairs. This is the basis on which the warning about surrogacy arrangements had been published in the websites of the Indian Embassies.

Surrogacy neither allowed or prohibited by Home Ministry

The Ministry of Home Affairs has not issued any guidelines either allowing or prohibiting surrogacy in India.  However, Ministry of Health and Family Welfare is the nodal Ministry in this regard.

Medical Surrogacy VISA requirements

The VISA category required for taking up surrogacy arrangement is medical surrogacy VISA.  A medical surrogacy VISA for surrogacy arrangement could be granted on the fulfillment of the following conditions:

a)    The foreign man and woman are duly married and the marriage should have sustained at least for two years.

b)    A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Medical Surrogacy VISA application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.

c)     The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.

d)    The treatment should be done only at one of the registered ART clinics recognized by ICMR.  (The list of such clinics will be shared with MEA from time to time)

e)    The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.

If any of the above conditions are not fulfilled, the surrogacy visa application shall be rejected.

Further, before the grant of surrogacy visa, the foreign couple needs to be told that before leaving India for their return journey, ‘Exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indiansurrogate mother have been fully discharged as per the agreement.  A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and surrogacy visa of the foreign parents.

However, the couple may visit India on a tourist VISA for executing the agreement on a reconnaissance trip, but no samples may be given to any clinic during such preliminary visit.

MHA-docs Ministry of Home Affairs on indian surrogacy visaCopy of the Notification issued by Ministry of Home Affairs on Surrogacy VISA 

MHA-docs2 MHA-docs3 MHA-docs4

In summary, a commissioning couple seeking to take up surrogacy in India can sign a surrogacy agreementin a tourist VISA, but cannot provide samples to the clinic when they are in a tourist VISA. Further, the medical VISA would be granted only when the surrogacy agreement is submitted as annexure document along with the application. That means that the couple has to travel twice prior to taking up a surrogacy arrangement. Once for meeting with clinics and signing of the surrogacy agreement; and again for providing samples to the clinic. It certainly seems strange.

The Ministry of Home Affairs by its communication dated 23rd July 2012 transfers the application partly to the Ministry of External Affairs. It could be noted here that the Ministry of External Affairs had brushed aside the RTI Application earlier made to them pertaining to the publication of surrogacy notification in the websites of the Embassies and failed to provide any information pertaining to the same. The post pertaining to failure to disclose information is here. It would be interesting to witness if the Ministry of External Affairs discloses information pertaining to the publication of the Surrogacy Notification in the websites of the Indian Embassies and Consulates.


Question 21 of the RTI Application related to the number of Exit VISA stamping done for cases of surrogacy. The Ministry of Home Affairs had transferred the particular question to the all the State Governments, Union Territories and the Foreigners Regional Registration Officers (FRROs).



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.

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 Oregon woman had met a New Zealand Couple over the Internet and accepted that she would carry their child. The intending couple had shipped her their gametes in a special container used to ship biological material. The couple state that Audrey Mogallon had received the container but did not return it. Later, she had sent the couple pictures of positive pregnancy tests and ultrasound scan reports, modifying the dates of earlier scan reports taken when she was pregnant with her own kids. The couple grew suspicious when the information stopped coming in. It was later that they came to realized that their trusts has been breached by her and that she was never pregnant with their child.

The police had also reported that they have received a second complaint relating to similar circumstances from a couple in Washington who had made payment to her upfront.

Israel High Court of Justice decided on an application filed by a gay married couple for taking up third party reproduction and raise a child. The High Court after deep thought elaborately decided that the matter was one to be decided by the Congress (Knesset) and not by the court as the matter involves policy of the state.

The frame of the argument was in short that the availability of the surrogacy arrangement only to heterosexual couples was arbitrary and violates the constitution, which guarantees equality. The state vehemently opposed this argument stating that the matter had far reach implications. The State of Israel decided to establish a committee to study the issue of third party reproduction.

Another interesting question that was considered was the extent of using scientific improvements such as surrogacy. It was pleaded by the State that surrogacy was allowed in Israel only for the intended parents who could not otherwise reach parenthood for medical reasons. It was argued that this couldn’t be stretched for homosexual couples.

The Supreme Court of Israel also sits as the High Court of Justice. This function is unique to the Israeli system because as the High Court of Justice, the Supreme Court acts as a court of first and last instance. The High Court of Justice exercises judicial review over the other branches of government, and has powers “in matters in which it considers it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal.”

Surrogacy FranceIndia does not seem to be the only country caught in midst of legal controversies over issues of surrogacy. France is also facing a similar question.

Since 1994, surrogacy arrangements are held to be illegal in France according to The French Law – Article 16-7 inserted by Act No. 94-653 of July 29, 1994 Art.1 I, II, art. 3 Official Journal of July 30, 1994 that states -“Any agreement on procreation or gestation on behalf of others is void.”

A French couple, Dominique and Sylvie Mennesson paid a surrogate mother in California about $10,000 in 2000 to carry their child. The surrogate mother carried the child to term and have birth to twin daughters. On birth the twins Isa and Léa, were given US birth certificates recognising the Mennesson couple as the legal parents – but the French authorities refused to accept these.

The Paris Court of Appeals had held that Dominique and Sylvie Mennesson were the legal parents of the children, but refused to consider the children as French citizens and denied French Citizenship. The couple have reportedly stated that they will take their case to the Cour de Cassation which is France’s highest court. They hope to set a legal precedent for other parents of children born to surrogate mothers, after six years of legal action. A draft law hoping to overturn the present French law of holding any agreement for procreation of child was presented to the Senate in January, but has yet to be discussed.