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.
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).
I had written to the Indian Embassy in Beijing, China seeking information under the Right to Information Act, 2005 over the notification published by the Indian Embassy in their website (http://www.indianembassy.org.cn/DynamicContent.aspx?MenuId=59&SubMenuId=91). The material published in the website is with regard to the new Surrogacy Visa introduced by the Ministry of Home Affairs.
The following are the contents that have been published:
Notice regarding visa to India for the purpose of entering into surrogacy arrangements
Any person seeking a visa to India for the 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 arrangements under any other visa not sought for surrogacy is punishable under Indian law.
I had received a reply on the 25th July 2012 providing answer to my reply. The following is the relevant extract from the reply received from the Indian Embassy:
- The above quoted contents were published on the Embassy’s website in pursuance to instructions received from Ministry of External Affairs.
- The contents are regulatory in nature.
- The intent of publication of the above content is to protect interest of the child born as a result of surrogacy and to ensure that he/she can be taken to the country of the parents commissioning surrogacy.
- GoI instructions as stated in Para 4 above.
- Medical Visa is the appropriate visa for the purpose.
- Copies of the document cannot be provided as they are classified in nature.
- The following documents are required for the visa for the mentioned purpose :-
a) Document to substantiate that the couple commissioning surrogacy are married for more than two years.
b) Letter from the concerned embassy stating that their law recognizes surrogacy and that the child born to the couple through the Indian surrogate mother will be permitted entry into their country as biological child of the commissioning parents.
c) Undertaking from the couple that they would take care of the child.
d) Copy of agreement between surrogate mother and the commissioning couple.
e) Letter from one of the ART Clinics recognized by ICMR, where treatment is to be done.
- Since the documents are classified, the same cannot be provided.
- As per available records, no visa application has been received mentioning purpose of visit as “Surrogacy” in Embassy of India, Beijing.
- For the purposes of drawing up and executing the agreement mentioned at 11 (d), a foreign couple can be permitted to visit India on a reconnaissance trip on tourist visa but no samples should be given to the clinic during such preliminary visit.
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.
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.