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Assisted Reproduction

New Guidelines: India Not A Viable Option For Gay Couples, Unmarried Couples Or Single Individuals

We have chronicled on this blog the perilous nature of proceeding with a surrogate arrangement in India. From international couples being trapped in India because their child is stateless and thus incapable of obtaining a passport, to twins being born who were not genetically related to one another, to a surrogate vanishing with the Intended Parents’ child, the problems are significant and potentially insurmountable.

And a bad situation has only gotten worse. We have now just received from the Deputy Commissioner of Police in Mumbai, the following guidelines issued by the India’s Ministry of Home Affairs. Here are the guidelines that apply to foreign nationals seeking to proceed with an Indian surrogate:

1. Tourist visa is not the appropriate visa category and such foreigners will be liable for action for violation of visa conditions. The appropriate visa category for commissioning surrogacy is a medical visa.

2. The foreign man and woman intending to commission surrogacy should be duly married and the marriage should have sustained for at least two years Please also note that current Indian laws do not recognise gay marriages.

3. The couple commissioning surrogacy should be in the possession of a letter from the Embassy of the foreign country in India or the foreign ministry of the country stating clearly that:
a. The country recognises surrogacy;
b. The child/children to be born to the commissioning couple through the Indian surrogate will be permitted entry into their country as a biological child/children of the commissioning surrogacy.

4. The couple commission surrogacy is required to furnish an undertaking that they would take care of the child/children born through surrogacy.

5. The couple should produce a duly notarised agreement between the applicant couple and the prospective Indian surrogate mother.

6. The treatment concerning surrogacy should be done only at one of the registered ART clinics recognised by ICMR.

7. The foreign couple before leaving India for their return journey would require exit permission and should be carrying a certificate form the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and the liabilities toward the Indian surrogate mother are fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be returned by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.

You are therefore hereby ordered to ascertain all the above mentioned details before commissioning the surrogacy cases of foreigners and not to accept any case for surrogacy if the conditions of no. 1 to7 of this letter are not fulfilled by the foreigner. Contravention of this order may hold you liable for legal action under the Foreigners Act 1946. Also you are hereby informed that because of noncompliance of this order on your part if in future any complication arises in respect or surrogate baby’s nationality and their parenthood, you will be held responsible for it.

Further you are directed to provide list of foreigners with the details of their nationality, visa, passport, etc. who have already registered with you for commissioning surrogacy to this office.

Notably, same-sex couples, single individuals, unmarried couples and couples who have been married for less than 2 years fall outside these guidelines. Moreover, if the international couple’s country of origin does not recognize surrogacy, then the couple would also be in violation of the Indian guidelines. And the penalty for proceeding with a surrogate arrangement in contravention of these guidelines? Imprisonment. Under Section 14 of the Foreigners Act, 1946, “If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine….”

Hat tip to my colleague, Stephen Page, for sharing these guidelines with me.

Discussion

27 comments for “New Guidelines: India Not A Viable Option For Gay Couples, Unmarried Couples Or Single Individuals”

  • Jon

    Andrew,
    First of all, the guidelines that you mention are just a “notification” by the Police Dept in Mumbai. A notification is far different from a statutory law I think you will agree. No one, especially the Mumbai police, can tell anyone what they can do in terms of surrogacy because surrogacy is legal in India. The surrogacy guidelines passed in 2002 at the national level clearly states the rules of surrogacy and the obligation of the intended parents (whether they are married or single) and the obligation of the surrogate to surrender the child. The Mumbai Police department has no standing to regulate what happens with private citizens, whether Indian or foreign, and the services they can engage in. Not anymore than the LAPD can tell the State of California what to do with the surrogacy business.
    Further the final comment about imprisonment is gratuitous and I ask that you remove that or clarify. The notification from the Mumbai Police dept, of which I have a copy, does not state anything about imprisonment. It referes to the Foreigner Act but the punishment will be applied to the clinics, not the commissioning parents.
    For now, the clinics in Mumbai are asking the Indian govt for clarification on this matter and there should be some clarity by the end of this month. There is only one possible thing happening in India right now, unrelated to surrogacy, which could sway the government to vote against surrogacy for foreigners. If you follow Indian news, you know what that is.
    I’m concerned with this development but the reality is there have been thousands and thousands of families created for American citizens who had no other alternatives and this is a huge cash cow for the Indian govt, I really doubt they will disturb this model any time soon. And the vast majority of those would agree that they would do this again and again. I am not saying that going this route in India is easy or not without stress, that would be a lie, but it is not anywhere near the level of drama that you consistently make it to be and the savings are incredible.
    I would advise people interested in this option to wait and see for a few months till there is clarity with this recent development. And for those interested who are gay, please note that the Indian govt does not ask if commissioning parents are gay; for all intents and purposes a gay commissioning parent is considred single in the eyes of Indian law. India does not recognize gay unions nor does it grant birth certificates in the names of two same-gender parents.

    • brian

      thanks Jon, for clarifying!

    • Toban

      Jon,

      Yes thank you for your words of reason in what has become a very messy situation for so many intended parents. I hope you’re right that this won’t stick and they will see the illogic in this but it seems like it is in effect for now, from what the Canadian consulate in India is telling me.

      • Jon

        Toban

        Patience please.

        As I mentioned below this incident is the work of a rogue in the Ministry who, from what I understand, acted unilaterally on this and without popular support from the government. The surrogacy industry is a cash cow for the Indian economy to the tune of billions of dollars. They realize that should they place prohibitions here that the business will go to Thailand and to other emerging surrogacy-friendly countries in other parts of Asia, Eastern Europe and Africa (sorry Andrew, with all due respect to you and your site and incredible work that you do for your clients, but while you think this is about India it really isn’t – if India bans this practice there are perhaps at least a half-dozen other countries that will pick up the baton from India)

        I think we’ll have some clarity on this issue in the coming months and this could be a motivating factor to pass the ART bill that has been sitting in Parliament for over two years now which clearly allows for surrogacy for singles.

        For now though, do not proceed any further, regardless of what your clinic tells you, as you are taking on unecessary risk. I don’t know what the citizenship rules are in Canada but, as I stated before, a baby born in India to a genetic parent who is a US citizen is entitled to US citizenship and no one, including the Indian government, can take that away. However, getting that American baby out of India physically, well that’s the part of the equation that is uncertain right now.

        • Marty

          Jon,
          From what I’ve read, the directive only applies to those entering India to enter into an arrangement for surrogacy or commissioning it. It does not apply to those who have already entered the country previously before the directive was issued nor does it apply to subsequent trips to return with the baby. Is that your understanding as well?

          • Jon

            That is the assumed interpretation by any rational person but, again, this is India we are talking about. The bureaucracies in India do not always work in tandem and, at every step of the process, you really don’t know what to expect in terms of how some opportunistic bureaucrat, whose signature and stamp you need, will behave. Your best bet is to stay in close touch with your clinic for information as to what is going on with others who are going before you and you should also alert the US consulate if you being extorted in any way. There have been no reports of exits being delayed but again this is all very fresh.

        • Martin

          We are watching what happens on the exits of those who had already started the process. Thanks for your insight. Hopefully, this mess gets straightened out soon.

  • M

    According to the website of the US Embassy in New Delhi, India is requiring people obtain a medical visa for surrogacy.

    I contacted the US Embassy in New Delhi. I was advised that the US Embassy is working with the Indian government to prepare a letter for US citizens that will satisfy India’s requirement as indicated in Point 3 of Mr. Vorzimer’s article.

  • Jon

    M
    Point #3 is a foregone conclusion. Of course the US recognizes surrogacy and that is really a moot point for the purpose of Americans who go overseas for surrogacy. So long as there is a genetic link (via DNA test) with the child then it qualifies for US citizenship. The delivery means, surrogacy or natural birth, is irrelevant in the eyes of the US government.
    The word “on the street” is that the current crisis is the result of one rogue bureaucrat in Delhi and the Indian clinics are all united in working with the Government of India to try to get this offending notification abrogated. The regulations that are already on the book make surrogacy legal for everyone, including gays and unmarried couples who are technically categorized as single people in the eyes of Indian law. So with that said this recent rogue action is in direct conflict with the regulations (which have become de facto laws) on the books. It will take a little time to resolve this conflict but my understanding is that it is a temporary setback.
    Anyone who doesn’t qualify for a medical visa as noted above SHOULD NOT proceed until there is clarity with this situation. The last thing you want is to be embroiled in some nasty surrogacy battle with the government that refuses to grant you an exit visa for the baby(ies). From a theoretical standpoing a baby born to a commissioning parent who is a US citizen can’t be denied a US passport but no one knows what will happen if the parent tries to exit India without a valid exit visa. This is uncharted territory and therefore interested parties should wait until there is further guidance from the Indian government on this law.
    If anyone would like to contact me privately regarding this issue, my email is nootrino@gmail.com

    • http://www.vmfirm.com Andrew Vorzimer

      Jon,

      As always, I appreciate your contributions on this issue. You are one of the most knowledgeable and passionate advocates for surrogacy in India that I have had the good fortune to meet.

      With that said, we obviously have a difference of opinion (and experiences) when it comes to this issue. I do agree with your words of advice about taking a wait-and-see approach to India until this issue is resolved. Whether or not this new issue is caused by a rogue bureaucrat or uninformed Deputy Commissioner of Police acting outside his official capacity, it is cause for concern.

      Also, to be perfectly clear, I do not reflexively oppose reproductive tourism. I acknowledge that the cost to proceed with a surrogacy arrangement in America is cost prohibitive for many and India and other countries offer the only hope to childless individuals and couples. However, it is important to be educated about the risks and uncertainties that exists in these countries.

      Again, thank you for sharing this information Jon. I intend to add another blog post in the next day or two promoting your comments to the front page so that everyone in the midst of a cycle in India or considering surrogacy there, has all this information available to them.

    • http://www.vmfirm.com Andrew Vorzimer

      Jon, you wrote: “Point #3 is a foregone conclusion. Of course the US recognizes surrogacy and that is really a moot point for the purpose of Americans who go overseas for surrogacy. ”

      I am not quite sure I agree that this is a moot point. The United States, at the federal level, does not recognize the legality of surrogacy arrangements. Instead, this is an issue left to individual states. As you know, there are many states that do not recognize compensated surrogacy, including New York, New Jersey, Michigan and Arizona. Other states only permit commercialized surrogacy if the Intended Parents are in a legally recognized marriage (in addition to other requirements). Consequently, given the current climate in India, it is uncertain whether a married heterosexual couple in New York or a same-sex couple in Virginia considering surrogacy in India can secure the letter referenced in Guideline #3. Beyond that, it is unclear whether a U.S. Embassy or Consulate officer can even issue a statement of legality given the absence of any federal recognition of surrogacy and the myriad of conflicting laws in the individual states.

      • Jon

        Andrew, yes you are correct about this point. The US does not recognize surrogacy per se at the Federal level and it is regulated at the state level. My response was perhaps a lapse in semantics and falling into the trap of the language Indians use for the surrogacy model. They have a tendency to mix up terms when referring to surrogacy, the actual medical procedure, and the accompanying process of granting legal citizenship to the surrogacy babies. It was the latter that I had in mind when I made the statement that I did. In India, babies born via surrogacy do not show the surrogate on the birth certificate so they do not meet the threshold for Indian citizenship (must have parent on birth cert who is born in India and Indian national), therefore at the point of birth the child is technically stateless even though many people use both Indian egg donors and Indian surrogates. This citizenship limbo situation has generated some controversy with a lot of Europeans who go to India for surrogacy and where commercial surrogacy is banned at the national level: France, Germany, Italy, etc. So although the child is genetically related to the French or German couple, the governments withhold granting citizenship as the parents violated the laws on surrogacy for that nation (i.e. Menenson case, French nationals who had baby in California). This has created a lot of controvesy and bad publicity becuase there have been cases of Europeans stranded in India for months and years on end because their governments refuse to grant the child a passport or any travel documents so they can leave India for a third country. So it’s this context I had in mind when responding the way I did. The issue of securing US citizenship for US nationals is very routine and the easiest for all nationals who go to India. The US does not make a citizenship decision for a baby based on the grounds of surrogacy and the Indian govt knows that; but the language they used in this notification was directed to a global audience and specifically many European countries where surrogacy is legislated at the national level. So my guess is they,the Indian officials who grant exit visas, will waive any formal letter from the US consulates or Embassies and will instead ask for proof that the commissioning parents are US citizens. That eliminates the risk of a stateless baby who can’t exit the country born to US citizen(s).

        • http://www.vmfirm.com Andrew Vorzimer

          Thank you for clarifying that Jon. Makes total sense.

  • Jon

    Just wanted to add to my comments above. So long as you work with a clinic that gets notarized agreements with the surrogate and which has a relationship with a delivery hospital that will not put the name of the surrogate on the birth certificate then there is absolutely no reason you can be denied an Indian birth certificate. I mention the Indian birth certificate because that is the starting point for getting US citizenship for the baby. Without a birth certificate then the US connsulate will not proceed. So, valid surrogacy agreement, valid Indian birth certificate and then valid US passport for the baby confers statehood to the baby and all the rights and privileges which that sovereignty confers to its citizens. Surrogacy babies in India are born “stateless”; the Indian government does not confer Indian citizenship to them despite the fact that the surrogate is Indian and they are born in India. I mention this because there is no legal hindrance, from the perspective of the foreign commissioning parent, that would allow the Indian government to prevent the baby from exiting the country if it has secured citizenship from another country and it does not have Indian citizenship. So on a theoretical level, there is absolutely no reason the Indian government can block the free travel of the parent with his/her child. The only potential roadblock is administrative; the Indian FRRO would deny an exit visa on the baby’s passport and the airlines/airports would have to honor Indian law and prevent the baby from exiting. Will that happen? No one knows but we shall soon find out. There are already cases that are in the pipeline waiting exit now and in coming months, who embarked on surrogacy before this law came out, so it will be interesting to see how the Indian govt handles these cases. My guess is they will blink because they do not want to engage in an international incident with the United States where the government is denying US citizens the right to exit India with their babies who are also US nationals. That would not make any sense whatsoever for the Indian government.

  • Disgusted

    Andrew,

    These are your words from paragraph one “to a surrogate vanishing with the Intended Parents’ child” – this did not happen, the article you link to states that the surrogate disappeared before giving consent to relinquishing the child. The couple had baby all along, when they got back to UK they applied for the parenting order minus the consent (which is part of the standard Indian surrogacy contract anyway, but in cases of clients from Uk, they need to get another one). My point here is, please tone down your hysteria and write facts, not fiction to scare people away from surrogacy in India. Shoddy writing.

  • rich

    I am an American citizen, single male, who is currently expecting a child with the help of a Indian surrogate. Does anyone have any idea how this will effect currently pregnant surrogates by single US men?
    I have great respect for India, and the clinic that is helping me… However, I am so confused about what to do, my baby is due in about 9 weeks? I contacted the US embassy who confirmed that I would be okay as the genetic father with obtaining a US passport for the baby, but how do I exit?
    I had no intention on hurting anyone by going to India. It seemed like a win-win situation for the surrogate, egg donor and myself.
    This is so scary to me, this is exactly what happened to me when I was in the process to adopt a child from Guatemala in 2007- I was on a 5 year roller coaster ride from hell. What would be the benefit to keeping my baby in India? I cant imagine anyone will want my baby?

    • M

      Here is a blog of a single dad who brought his daughter home to Chicago from India in January 2013.

      http://michaels-surrogacy.blogspot.com/

      He might be able to answer your questions.

      Look for blogs of other dads who brought their babies home from India in 2013 for guidance.

      I wish you all the best.

      • rich

        Thank you for sharing.
        If you read his blog, he had a medical visa, and he only spent 13 days in India to pick up his daughter.
        What do not understand is how there are so many people effected by this, however no a peep anywhere? This guy Mike brougt his child home via medical visa…. I can retroactively obtain one now.
        I want to know what steps the US Embassy is taking to help their citizens. It makes no sense to go to he Embassy, get your childs passport etc…. but you not able to leave because of the NEW rules- and what the hell is with this being able to go backwards, effecting people who where within the legal guidelines, but now that it does not suit them, they just take it away? And, not a peep from the US. Just because I am gay that does not make me less of a citizen, I love that they published a letter- for the heterosexual married couples support. Never mind the rest of us, wouldn’t want to ruffle any feathers…. It’s just a bunch of homo’s- I am one so it’s acceptable for me to use ;)
        What is stopping the US Embassy from publishing a letter of support for ALL American in process? Theyre explanation to me was so vague and evasive, they have no information nor desire to help.
        Lastly, are we suppose to order a dna kit and have it sent to the Embassy now, if we are due in a month or so? I believe this is what I read? Not that it will matter. Once I jump the US hurdles for citizenship, the US is just going to standby and make us leave our children- other citizens? Why is this not on the cover of every news paper?

        • M

          India’s new visa requirements affect an intended parent’s ability to get a visa to go to India. It does not prevent your baby from getting an exit visa to leave India.

          The letter from the US Embassy in New Delhi does not say only heterosexual couples may use that letter to apply for a visa to India.

          I suggest you contact that single dad to ascertain how was he able to get a medical visa to go to India when he brought his daughter home.

          • rich

            Thank you for your insight, it is of no value to me. As I stated the single dad that had a medical visa, he obtained his medical visa by stating what he was intending to do, and it was granted.
            I have read and re-read every website I could find and I have yet to find information pertaining to singles/denials…

  • inc

    Hi all…Refers to current rule of banning gay/single guy for surrogate process….How about we choose another route by marrying local indian woman? for sure we need to use IVF etc, , so the sperm from us and egg donor from her? is it legal..then it is up to the agreement what happen after the baby delivered…thanks

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