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.