India clarifies stand on Surrogacy VISA Regulation

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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.

Home Affairs transfers the RTI Application to External Affairs and All State Governments

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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).

 

 

Indian Surrogacy Law Centre files RTI Application seeking Clarity on Surrogacy in India

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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.

 

SURROGACY

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:

  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.

 

United Kingdom High Court rules on commercial surrogacy contracts

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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.

Surrogacy Scam

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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.