There has been press coverage over the past couple of days about the new Indian surrogacy laws blocking gay dads from accessing surrogacy in India. It is an issue which has been brewing for a while, with a Bill lurking in the Indian Parliament for the past two years designed to regulate the Indian surrogacy industry and to stop foreign parents conceiving children they can’t take home. The changes affect all foreign parents considering surrogacy in India, but hit gay dads particularly hard.
Although the new draft Indian law itself has not yet been enacted, it seems that it is being brought into force by the back door. The Indian authorities have started requiring foreign parents obtain a ‘medical visa’ to travel to India for the purposes of engaging in a surrogacy arrangement (and this covers trips involving any treatment, including leaving sperm samples).
What has happened this week, as reported in the Times of India, is that Indian surrogacy clinics have been notified that they must register with the Indian Council for Medical Research (ICMR) and ensure their foreign patients have the visa before giving any treatment. Surrogacy clinics are, in other words, being given responsibility for enforcing the new visa requirements.
What are the new requirements?
In practice, UK parents are in a better position than those in other countries where surrogacy is not recognised at all, but gay dads and unmarried couples will not be eligible. To get the medical visa for surrogacy in India, the Indian authorities say that:
1. The parents must be a man and woman, married for at least 2 years.
2. The parents’ home embassy must provide a letter confirming that their country recognises surrogacy and that any child born will be entitled to enter the parents’ home country. The British High Commission has helpfully issued a letter for this purpose which is available on their website here.
3. The couple must undertake to care for the child.
4. The clinic must be recognized by the Indian Council of Medical Research (ICMR).
5. The couple must have a notarised surrogacy agreement with their surrogate mother.
6. The couple must be informed that they need an exit visa under Indian law to take their child out of India after the birth and, to get that, they must have taken custody of their child and discharged all their responsibilities as per their surrogacy agreement.
So what now?
Many parents we work with go to the US for surrogacy, where there is a much more established legal framework which is supportive of all types of families and of surrogacy generally. For those with a more limited budget, the UK is probably the safest option, albeit that it has its own challenges. Other international destinations (places like the Ukraine) are likely to revive as a result of these changes in India.
Parents contemplating international surrogacy also need to bear in mind that, even without these new Indian law issues, international surrogacy law is complicated and that the UK legal position does not automatically reflect the law in the destination country. There is more information about the UK legal issues associated with international surrogacy on our website.
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