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Surrogacy in India: High Time to Execute the New Surrogacy Law

surrogacyA week before, many number of Australian Couples declined to visit Asian Countries and their visa were rejected. The version of the Government of India is that Australia should take initiative to solve the deadlock that was experienced in the last weeks. The issue was that the couples in Australia rejected the visa to visit the countries in Asia to take on surrogacy. In 2012, an Australia couple had twin children to an Indian surrogate mother. But they willfully neglected to take one baby as they could not afford the expense of both children. The Indian officials had informed the Australian couples to attain a sanction letter from the Department of Foreign Affairs and Trade (DFAT) permitting the child taken birth from a surrogate mother in India to get into Australia. The authorities have also informed that the broad letter given by the Australian High Commissioner was unclear and did not contain details regarding the Australian nationality to the child born from the surrogate mother in India.

The Australian High Commissioner in the letter for the Australian couples whose applications for visa was declined points out that the child born to a surrogate mother will be issued citizenship by descent or else he will be given permanent visa if such person comply with the eligibility conditions as per the provisions of the law of Australia. The letter also states that the State Governments control the law dealing with the transfer of parentage whose birth was through the surrogate mother. Moreover, in NSW, the ACT as well as the Queensland, the law makes it an offense to deal with the commercial surrogacy strategies of a foreign State.

Mr. Syed Akbaruddin, External Affairs Ministry Spokesman of India states that visa for the purpose of surrogacy shall be issued to people only after strict compliance with the legal standards prevailing in India. He further observed that where the Australian couples fails to accomplish the prerequisites of Indian law on surrogacy and the visa standards, he will not be granted visa. In Australia also, such issues are existing and therefore, the Courts of the country where the people apply for visa shall have the responsibility to settle the matter. The law of India shall be applicable as the legal principles related with surrogacy are under construction, said Akbaruddin.

The DFAT had informed that they had updated the travel procedure for India and the Australians shall understand that Indian authorities will strictly scrutinize the applications of visa and it shall be granted only if the laws and rules governing surrogacy are obeyed. Due to the increasing number of applications and long assessment process, the Australian couples shall be aware that the consideration of the application will be time consuming in India. It is estimated according to a report that more than 200 children are born by surrogate mother in India in the past few years. India had commercialized surrogacy since 2002, but an effective legislation that deals with the subject is still not formulated.

The hon’ble Supreme Court of India, in Baby Manji Yamada v. Union of India (2008) had rightly remarked that in India, commercial surrogacy is sanctioned and legalized. The Court also directed the Parliament to frame suitable legislation dealing with surrogacy. In its 228th report, the Law Commission recommended the requirement of appropriate legislation to control the Clinics for Assisted Reproductive Technology and also to settle the privileges and liabilities of persons opting surrogacy. Presently, India is following Assisted Reproductive Technique (ART) Clinics guidelines as surrogacy law. To observe the suggestions of the law Commission, the Parliament had initiated the Assisted Reproductive Technique Bill, 2013 which is still pending. It is expected that the law on this point will be brought into force soon when the Australian issue is under discussion.