Friday, January 11, 2013

Buzz about Surrogacy in India!

There has been a buzz in the surrogacy community for India, regarding regulation for the past month.  Many of us have read that the status for single people as well as gay couples was on hold if they wished to move forward with surrogacy in India.  A number of people have been contacted as I have been suggesting that I inform clients who fit that bill, that they need to hold off for the moment.  I have contacted a number of doctors in India who are in the business and they feel strongly that there is no need to do so, and that this situation is being worked out. 

I do not believe that the situation is as dire as some have expressed.  Here is one letter that validates my point.
The Assisted Reproductive Technology (Regulation) Bill 2010 was drafted by a 12-member committee comprised of experts drawn primarily from the medical and legal establishment. Its ambit goes much beyond surrogacy and aims to introduce a comprehensive regulatory framework for the booming ART industry. After being made available for public response, an updated version of the Bill of 2010 and is currently considered by the Indian Parliament.
In the absence of specific Legislature, we are governed by ICMR Guidelines 2005. Under the said Guidelines as well as the Proposed Bill, there is a clear and unambiguous suggestion that a single Man and / or a single Woman can go for surrogacy in India.
Clause 3.5.2 of the ICMR Guidelines 2005 provides There would be no bar to the use of ART by a single women who wishes to have a child, and no ART clinic may refuse to offer its services to the above, provided other criteria mentioned in this document are satisfied. The child thus born will have all the legal rights on the woman or the man.”
Clause 3.16.4 of the ICMR Guidelines 2005 provides, Rights of an unmarried woman to AID - There is no legal bar on an unmarried woman going for AID. A child born to a single woman through AID would be deemed to be legitimate. However, AID should normally be performed only on a married woman and that, too, with the written consent of her husband, as a two-parent family would be always better for the child than a single parent one, and the child’s interests must outweigh all other interests.”
Chapter I, Clause 2 (v) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides definition of married couple”, means two persons whose marriage is legal in the country / countries of which they are citizens;
Chapter I, Clause 2 (dd) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides definition of unmarried couple”, means two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country / countries of which they are citizens;
Chapter VII, Clause 32 of the Assisted Reproductive Technology (Regulation) Bill 2010 provides, “Rights and duties of patients – (1) Subject to the provisions of this Act and the rules and regulations made thereunder, assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples.”
Chapter VII, Clause 34 (19) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides “…..a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be……”
Chapter VII, Clause 35 (3) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides, In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.”
Thus the intention of the Legislature is very apparent that there is no bar for the single man and / or woman to go for surrogacy in India. In fact the Proposed Bill has gone a step further and have recognized / suggested surrogacy for gay couple(s) married or unmarried. Any Notification suggesting and / or spelling out contrary to the intention of the existing Guidelines and / or Proposed Bill is against the law and is challengeable. Further make no mistake this Notification if at all enforceable cannot be given effect retrospectively. This Notification needs to be challenged / will be challenged. Till the time the said Notification is challenged and declared ultra-vires, the Indian Authorities will harass the Intended couple(s).
We at Surrogacy Laws India, who specializing in Surrogacy Laws are fully equipped to take this challenge if and when approached / engaged by any Intended Couple and / or Forum. We have enough expertise and experience to take this forward with the Ministry and / or the Courts to get the said Notification quashed.
Only last week one Single woman from Australia whose case we took to the FRRO was granted exit. Though an objection was raised by the concerned officer showing us the Notification. It was told to the said Officer in clear words that the said Notification is not applicable to us for the reasons explained. The file was sent to the Senior officer and after considering the points raised the case was cleared and exit granted. 
We believe to stand for what is right and for that if required we are ready to fight. As the things stand today we know we are not wrong.
Anurag Chawla, Advocate
Surrogacy Laws India



10 comments:

Anonymous said...

Crystal

With all due respect, but I would exercise restraint with this new situation until the government of India clarifies the position. In case you are not aware, the US Embassy site in Delhi has now issued a statement on the page concerning ART/surrogacy:

"Update: Please be aware that the Indian government requires medical visas for individuals coming to India for the purpose of surrogacy. We advise those considering surrogacy to be sure to check the latest requirements with Travisa or the Indian Embassy or Consulate nearest you for the most current information on who is eligible for a medical visa and the consequences of coming to India to commission surrogacy without the proper visa."

The link is here:

http://newdelhi.usembassy.gov/service/reporting-births-and-citizenship-questions/surrogacy-a.r.t.-and-dna-testing

Quite frankly, I'm shocked that Mr. Chawla is taking this so casually given this new law was issued by the Ministry of Home Affairs and it is being implemented by various police departments in surrogacy gateway cities. Additionally, the US and Canadian embassies in India are already warning their nationals about the dangers of not obtaining medical visas for surrogacy services. If anyone finds themselves in a bad situation down the road, they can't plead ignorance as the Indian government and the US/Canadian governments are giving clear warnings about what is going on.

People need to exercise restraint until this is sorted out and for goodness sakes don't believe anything your clinics or Indian lawyers are telling you over the warnings of your government.

Your buddy J

crystal said...

Hi Buddy,

You could be correct. I am certainly letting my clients know that they need to change the status of their visa, no matter what they are being told. I certainly do not wish for anyone to be stuck in India due to changes at the last minute. I am being told on my end that this situation will resolve itself within the next two weeks, please feel free to post comments if you are aware of other events unfolding. Are there folks stuck on the ground due to the Visa issues, or gender issues?

A number of doctors have signed a letter which will be given to the Ministry of Home Affairs requesting that this situation be cleared up asap. Please keep us updated, and as well as others who are in the loop!

Anonymous said...

What I do know for certain is that the more reputable providers have temporarily suspended their programs for new clients who do not meet the requirements for medical visas. This is the sane and ethical thing to do IMHO until there is greater clarification from the government of India. And no one can say they weren't warned as the Indian govt and the US embassy are all clearly articulating the policy regarding medical visas.

J

Brian White said...

So are there any IP's currently in India trying to take babies home who are on a Tourist Visa ?

Anonymous said...

http://www.issurrogacyformepleasesayyes.blogspot.com.au/

crystal said...

Travisa is stating at least for US Intended Parents, that they will only issue a TOURIST VISA, if you are picking up a baby from India only. I have forwarded that information to the attorney's that we work with in India. Travisa has put this in writing. So far 2 American families have left India this week on a Tourist Visa.

Thanks for all of the private e-mails, and for sharing. Please share if you have any new information.

Anonymous said...

This is a tragic situation for many but I think some of us, who follow this business, saw this coming given the excesses of a few rogue players in this industry. When this was a "craft" industry so to speak the government of India let things go under the radar but things got out of hand and they found themselves in a difficult position of having to balance damning attacks from domestic critics, police departments, human rights groups, women's groups, religious groups, and finally foreign embassies and consulates who felt helpless because they had to overlook the laws of their own host countries which had bans on commercial surrogacy in order to accomodate the needs of citizens who came to them for exit visas and were desperate to leave India with their newborns. It is the latter which may have broken the camel's back. Diplomatic pressure to close this loophole may have trumped any revenue windfall the Indian treasury was realizing. Tragic to say the least.

PS - the blog noted above had a comment from someone who mentioned this was intended for Australia - they were not too far off in that assessment actually but they didn't clarify the statement of what is going on behind the scenes with the MHA. The stories whirling about do have a very real connection with the lovely land of Oz, but it is not for me to rehash rumors of what is going on. Let the chips fall where they may. Indeed.

Anonymous said...

Those of us in the know, those of us copied on communication between the clinics (with the except of Rotunda and Surrogacy India in Mumbai, who don't seem to give a damn about clients, let everyone else sort things out) and MHA, and ICMR, know there are moves to challenge the new visa requirements. No clinic is going to come out and make an official statement as things change on a daily basis. This has nothing to do with OZ, Jon, nothing at all. so don't go down memory lane on that one. It would be prudent at this stage for singles not involved with a service to not proceed at this stage, you may be offered a backdated contract (Mumbai clinics) or asked to sign a waiver (Rotunda), in my opinion this is dangerous as things are too uncertain at this stage. There are people taking babies home on tourist visa every week, with all clinics, Mumbai, Delhi both.

Queen Quinn said...

Thanks for sharing nice article, keep posting.

Anurag Chawla said...

Dear Anonymous,

We respect your concern for the I.P.s and believe you me our motive is no different than yours. What we intended to put forward by mentioning the law status is not that the I.P. should violate law and move ahead against the Indian Government directives but rather understand the current scenario & be well informed about the conflict in guidelines, proposed law & the new guidelines and then make the decision. Our fight is not against the government but in favour of the innocent I.P. who have been barred without any proper reason. We would reiterate that we shall continue our endeavour of protecting the I.P.s and we totally respect the Indian government action provided it is just & non-arbitrary.

Anurag Chawla, Advocate
Surrogacy Laws India
www.surrogacylawsindia.com