Thursday, January 17, 2013


For those of you who have not seen this article, I thought I would share it with you. Surrogacy in India is big business, and what you will see happen is other countries filling in the gaps where India fails. --------------------------------------------

Changes to commercial surrogacy arrangements in India, introduced just before Christmas, have cut off one of the more popular avenues for Australians wanting to become surrogate parents.
While heading overseas for commercial surrogacy is illegal in Queensland, New South Wales and the ACT, hundreds of Australians still flew to India every year to become parents.
But now the Indian government has issued a directive that only couples who have been married for more than two years can enter into commercial surrogacy arrangements, and only if it is legal in their home country.
Queensland lawyer Stephen Page - a surrogacy specialist who has represented many Australian surrogate parents - says the policy changes in India have already had a huge impact.
"Essentially, if you want to go to India in future for surrogacy, you've got to be married for a minimum of two years - gay marriage is excluded - and surrogacy must be legal back home," he said.
"The only place where commercial surrogacy can occur in Australia is the Northern Territory.
"So unless you're in a heterosexual, married relationship for two years and you're living in the Northern Territory, you can forget about going to India."
Mr Page says the majority of people who went to India before the law was changed were not married.
"They were either living in a de facto relationship or they're in a same-sex relationship or they were singles," he said.
"I believe instead of about 200 children a year being born to Australian-intended parents a year, it will be down to five or 10."
He says the rule change will not stop Australians entering into commercial surrogacy arrangements overseas. They will simply look elsewhere.
"The strange thing is, it's outlawed at the state level, but at the federal level it's not," he said.
"At the federal level, you can go overseas and all that you need to establish is that the child is yours and then the child is entitled to Australian citizenship."
Legal headache
Surrogacy Australia president Sam Everingham says many Australians with incomplete commercial surrogacy deals in India are now in limbo.
He says it would be far preferable for Australia to regulate commercial surrogacy at home.
"It's become a legal headache for many courts in Australia dealing with the unintended consequences of surrogacy," he said.
"If we had arrangements in Australia where commercial arrangements were possible, it would make it much easier for the kids that are born, as well as the parents."
He says commercial systems can operate well and provide positive outcomes for children, surrogates and parents.
"I think there's a lot to be said for keeping these arrangements all happening in the same country," he said.
"You avoid issues like accusations of exploitation of families from less well-off backgrounds, and it's been clear from systems in place in US states like California and Minnesota that commercial systems can operate very well.
"Despite the laws we've had against surrogacy, a lot of families go overseas and ignore those laws. So I think it will be a much better outcome if we could get those sorts of arrangements and much better access to surrogates in Australia.
"Even if it's not commercial, even if it's just surrogates being able to advertise that they're willing to carry in Australia, it would be a start

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

Tuesday, January 1, 2013

Happy New Year 2013

May the Universe be with all of us in 2013.  For all of those who wish to create the family of your dreams, may you find peace and happiness in this new year.

Best wishes,