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Assisted Reproduction

Do New Surrogacy Guidelines In India Apply To Existing Pregnancies?

In light of the new guidelines that were enunciated last month, there is understandable confusion and concern in India as to whether they apply retroactively to Intended Parents and their Gestational Carriers who have already undergone IVF or are pregnant:

The home ministry’s guidelines tightening visa norms for foreigners seeking children through an Indian surrogate have created confusion in various quarters. Foreigners who are midway in surrogacy procedures are worried that their future hangs in balance, even as doctors question the rationale behind some new provisions. There is, however, no denying the need for regulation given that the passage of the Assisted Reproductive Technology (ART) Regulation Bill 2010 has been long overdue.

TOI (January 18) highlighted that the home ministry has introduced new visa norms for foreigners seeking to rent-a-womb in India with stringent eligibility criteria. Only couples married for two years and those whose countries recognize surrogacy, among other clauses, could apply for a medical visa for surrogacy. They thus disqualify gay couples and single individuals.

“The new provisions have brought in a dilemma for several gay foreigners and singles, who are undergoing ART procedures in India before the norms came in,” points out Hari G Ramasubramanian, partner of Indian Surrogacy Law Centre, Chennai. He said one of his clients was due to have a child in June-July as per the old norms but there is no clarity if the new norms would be applicable to him too. “The ministry has not given any date of commencement for the guidelines,” he said.

Sources at the foreign regional registration office here said they had written to the ministry last week seeking a clarification about the cut-off date for implementation of the new norms.

In a letter to the deputy commissioner of police, Dr Gautam Allahbadia, medical director of the Rotunda centre for human reproduction, Bandra, questions the provision requiring foreigners seeking surrogacy in India to be married for at least two years. “The statement is not in accordance with certain clauses of the draft ART Regulation Bill 2010 issued by the ministry of health & family welfare,” he states, pointing out that the bill in many clauses clearly mentions that unmarried couples, as well as single persons, can commission surrogacy.

Doctors question the rationale behind the “two years” clause, as a couple married in their forties, for instance, may want to bear a child through surrogacy within the first year itself.

Advocate Amit Karkhanis, on behalf of an apex body of IVF clinics, plans to petition the home ministry. “We are okay with the government coming out with guidelines, but there has to be some logic,” he says. Doctors, for instance, explain that the registration of ART clinics is nascent and under way. In that backdrop, the ministry condition requiring foreigners to undergo the procedure only in registered clinics may be ahead of its time.

While I have no desire to frighten anyone already in the midst of an IVF cycle or pregnancy in India, I implore you to seek out legal advice in India regarding your compliance with these new guidelines and the ramifications if you are non-compliant. Should these guidelines be applied ex post facto, many international Intended Parents could find themselves trapped in India without a passport to return home with their baby.


10 comments for “Do New Surrogacy Guidelines In India Apply To Existing Pregnancies?”

  • Jon


    The conventional wisdom and HUMANITARIAN thing in this situation would be to allow active pregnancies to deliver and allow these babies to leave using the old rules. If the Indian authorities try anything less they will meet a lot of criticism from the embassies and consulates for sure. But then again, India is an irrational place and you never know how any of the players in the exit pipeline will play this out and try to squeeze whatever they can out of commissioning parents.

    Again, for your readers who may have live pregnancies using an Indian surrogacy clinic, they should be in contact with their respective embassy or consulate so they are on the radar and the consular officials are aware fully of what is going on. Trying to do this covertly is not a good idea under any circumstances. And for goodness sake, don’t hire an Indian lawyer. They will sell you the world and leave you high and dry at the first sight of trouble.

    Finally, those who have not started the process yet, if you don’t meet the requirements for the medical visa, you should hold off pending further feedback from the government of India. Under no circumstances believe in anything the clinics tell you to proceed or they will “fidget” the paperwork to have you grandfathered in. That is taking an excessive risk. The clinics have nothing to lose by having you take chances and accepting your money.

    There is also no direction at all about people who have frozen embryos from the past and what the disposition will be of those and if those embryos will be grandfathered in as well. None whatsoever. Whoever passed this directive appeared to do so without any consulations of industry experts or taking into consideration all the parameters of the situation.

    It is a sad situation indeed but gays and singles and unmarried couples should wait for further clarification before sending any money to India.

    And, Americans in particular, should keep in mind that India is a sovereign nation and the Indians do as they please; just because the values and decisions there don’t conform with American values and culture it doesn’t mean that will force them to make exceptions for Americans who object. The issue of gay surrogacy in India is a very delicate one as India is a very traditional and patriarchal society with a very religious population, 200 million of whom are Muslims. It is against this backdrop that the surrogacy clinics have been operating for the past decade and have always tried to stay off the radar screen of public opinion so as not to endanger the model. But along with the success and volume of clients that grew exponentially, the chatter and complaints got larger and larger, and, well, here we are. What is happening is in many ways the logical conclusion of trying to impose a Western business practice on a very traditional society whose core values are in direct conflict with the model.

  • As an IVF father on US green card, my IVF daughter was not allowed to immigrate to the US without a “mother” as per US Immigration laws forcing me to live in exile in India to raise my innocent IVF girl child. Why is the gender of a parent the cause for victimization for an innocent child? Where is the mercy?

    Surrogacy laws are in its infancy worldwide. Commercial surrogacy is illegal in most western countries but allowed in India. Child born outside the US needs to meet special requirements before he/she can immigrate to the US. The innocent IVF children are placed in a “no man’s land of laws”. What is their fault? If their legal recognition is in limbo, then what about protection of their basic human rights and child rights? Where are the laws for the entire IVF ecosystem? What about protecting the rights of the donors, surrogates and most importantly the IVF child? There has to be an open discussion on protecting RIGHTS of ALL. There are 8 different ways to assign parenthood through IVF. There is ONLY ONE way to assign parenthood through a natural birth. Why are we trying to fit a square peg in a round hole? Have all 8 different scenarios been considered when drafting laws for assigning parenthood for an IVF child?

  • Matthew

    Why do I need a Surrogacy Visa to pickup and bring home my baby? The surrogacy portion it done and over once the baby is born so this makes zero sense. While I completely disagree with this new process, this certainly cannot be applicable to those already entered into a surrogacy agreement. There’s no way my country would support my child being orphaned in India – what a joke LOL.

    • rich

      I agree. My surrogate became pregnant at the end of July 2012/ and is due in about 9 weeks. I don’t have any idea what to do? Does anyone have any suggestions? I contacted he US embassy who said they would provide a passport to the baby, but has anyone been able to exit yet?

      • Jon

        As stated before, foreigners who have pregnancies established before the new rules are being allowed to leave. There have been no reports of anyone being detained. If you guys are US citizens and your babies qualify for a US passport then the Indian government can’t detain you for any reason really. It would spark a diplomatic incident. Although India is a sovereign nation, the US does have enormous clout in the country and the Indians have no interest in starting disputes with the US. That’s not to say though that at some point in your exit process some cowboy or cowgirl bureaucrat is not going to try to squeeze you for some extra rupees and give you a hard time. If you encounter that you have a few choices, 1) pay what they want if it’s not unreasonable 2) contact the US consulate/embassy and report any extortion/bribery attempts in the hopes they will intervene. Even before this new law came into existence, it wasn’t unusual for exiting parents to be fleeced one way or another by the FRRO or others in the pipeline so in that regard it’s just standard operating procedure for India. Key thing to remember is that you should be in contact with the US officials in India; remember they are there to help you, American citizens, as you conduct business in these countries so you are fully within your rights to seek their help.

        Finally, for others who havent’ started the process and who DO NOT QUALIFY for a medical visa under the new guidelines I highly recommend, in the strongest terms possible, that you do not go any further until there is clarification. You should not listen to any assurances the clinics or Indian lawyers give you or American/foreign facilitators that this is a temporary setback and you can still start the process. Once these clinics get your money and gametes, you may very well have a nightmare getting them back in the event you are not allowed to proceed. The US consulate and several other foreign embassies are already warning their nationals not to proceed with surrogacy in India unless you/they qualify for a medical visa.

        Good luck

        • rich

          Thank you for your reply.
          Right after posting, I Skyped with my MD in India. He stated that their was a meeting held yesterday determining a cut off date of Dec 15, 2012, so embryos created before will be able to exit. I hope that this is true.
          You seem to really know your stuff, and if you don’t mind, I am trying to clarify something… The US Embassy states on their site that DNA kits should be ordered asap, and DNA should be done one month prior to the birth? If I understand correctly, that would mean a procedure for the surrogate, such as amnio or a CVS (however I think that can only be done earlier?) Have you heard this?
          Our particular clinic is very well known around the world (not bragging) but I am inclined to believe him. I am a RN, and when I looked at our surro’s belly, she is very large, so large that we are going to arrive three weeks earlier than we had originally anticipated.
          The MD generally waits for natural labor to ensue, but in light of the current climate, id prefer to get in/get out.Thoughts…
          I am sorry that I am not as knowledgeable able the law, I thought I was, then this fell into my lap. I am still having a hard time grasping how this decision to exclude some 40% or higher clients, this is such a boom to the economy at almost every level. With all honesty, we believe that our surrogate has been treated ethically, I dont think the clinic would risk its reputation?
          Lastly you mentioned potential extortion- I hate even asking this, but where would I encounter this, at the facility where I attempt to obtain a exit visa? Or at the airport?
          I am ready, packed and just finalizing my hotel and airfare accommodations. I did not realize that the citizens of India saw this as extortion, I feel terrible. That was never our intent.

        • Martin

          This whole directive is a mess. We still have one batch of embryos that are frozen and sperm still frozen with two more cycles paid for and included in our package with our clinic. The directive doesn’t make surrogacy illegal just prohibits entering the country to arrange for services and donate material. It also doesn’t prohibit shipments of semen or other genetic material into the country, which may or may not be a viable option based on custom regs and it doesn’t prohibit surrogates from going elsewhere, e.g., Nepal, or even the U.S. to deliver. In fact, even if this is enforced, I would expect the clinics will open up or partner with others outside of India to fulfill a part of the surrogacy. There are so many holes and potential permutations around this that could be worse than the status quo that hopefully ICMR will raise these flags and more structure and fewer restrictions against gays, singles, etc. will be provided. Jon, have you heard anything about the 12/15 date mentioned by Rich below as being the cutoff for use of frozen embryos?

          • Jon


            The US will not admit indigent Indian women to enter the country to give birth to surrogacy babies. Ain’t gonna happen. The bar for granting visas to Indians entering the US is extremely high. Nepal is part of the Indian sphere of influence so whatever happens in India eventually trickles to Nepal. I don’t see that as a good choice at all because Nepal is very backwards and lacks the medical infrastructure that India has. Logistically, impregnating a surrogate in India and then having her travel to Nepal to deliver, well that’s a it of a stretch and the commissioning parent(s) would be taking a huge risk. What if the surrogate is unable to travel for medical reasons? And there is no guarantee that the Nepalese govt will grant visas or allow this trade to continue. Do be careful.

            I have not heard anything official about grandfathering of embryos that have already been created. I have heard however that some of the clinics are giving lists to the MHA of clients who already fall in this category with the hope of having them grandfathered in regardless of their marital status. But there have been no announcements or decisions yet in this regard. If anyone else knows otherwise they should post the source.

            As far as the intent of the directive, it makes it very clear that surrogacy is not allowed for anyone except married couples married for two years or greater and whose home countries honor surrogacy arrangements. I doubt they will look kindly on anyone who attempts to circumvent the rules due to their lapses in verbiage and failure to consider all the scenarios. The US embassy and several others have posted this information on their sites and several large media organizations have commented on the implications of this directive. I think anyone who intends to dismiss all of that and try to find a loophole, well good luck with that but it is not a risk I would take.

            The bottom line is simple: wait and see. Not much else anyone can do who does not meet the requirements of the medical visa.

  • Jon


    I don’t want to hijack Andrew’s site for questions your clinic should be answering. You can email me privately if you’d like at nootrino@gmail.com


    PS – DNA testing is done after the baby is born and it is performed on the genetic parent and the baby not the surrogate. this is required to prove a genetic relationship so you can get a US passport for the baby, assuming you are American.

    PSS – India is a sovereign nation of 1.3 billion people (that’s 4 times the population of the US). We have no right to judge how they decide to run their nation and the laws they pass. Keep in mind that even in the US, surrogacy is illegal in the majority of US states. The issue of international commercial surrogacy is a very complex one and obviously if the Indians are placing restrictions they may have a motivating factor for doing this.

    • Hi Jon,

      Thank you for responding to all these inquiries. Also, please do not worry about responding on our site. This blog is intended to be a resource to the community and your contributions are invaluable. So feel free to respond and provide as much information as possible. So many people are now impacted by these new guidelines and are understandably anxious. So I am happy to make this blog available to address these issues and allay any concerns.

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