Tuesday, 5 March 2013

New Indian surrogacy law risks making children stateless

Indian children born through surrogacy risk being left stateless following a legal change. 

So reported a number of sources in Australia early this week.  India has been for some time a popular destination for prospective parents from Australia, the UK and elsewhere who seek to have a child through surrogacy.

Shortly before Christmas 2012, the Indian government – with little consultation or notice – banned foreign gay couples, unmarried heterosexual couples and single individuals from entering into surrogacy arrangements with Indian mothers.

Now, those seeking to have a child via surrogacy with the help of an Indian woman require a medical visa.  The Indian government has said it will only issue such a visa to a man and a woman who have been married for at least two years.

The sudden change has left many expectant parents awaiting the birth of their babies in breach of Indian law.

Some surrogate children, when born, will not be entitled to Indian citizenship, and may not be entitled to citizenship of the countries where the commissioning parents live.  They may therefore be prevented from travelling abroad and find themselves stranded in India with a surrogate mother who may have no ability or resources (or even desire) to care for them. 

The Australian coverage includes personal accounts of the anguish the change has brought.  One such story is that of Paul Taylor-Burn and his partner, Josh, who live in Perth, Western Australia.

"When we went [to India] in July, we were under the impression that everything was absolutely fine.  You [could] enter into this as a gay man with absolutely no restrictions on what we were doing," Mr Taylor-Burn said.

They now find themselves operating outside Indian law.

Mr Taylor-Burn:  "We know that we don't meet the new criteria. We know our contracts have been signed after the cut-off date, but we don't really know what's going to happen."

"I think the biggest worry is really: what's going to happen when we get there? Are the babies going to actually get their visas to exit the country?  What can happen?  Is there any possibility of the babies not being able to leave?  Are we potentially going to be prosecuted?"

Ironically, the recent change was in part motivated by cases where surrogate babies born to gay parents were unable to leave India because countries such as Germany, Italy and Japan refused to grant the children citizenship.

So, in addressing this limited cohort of cases, the Indian government has potentially consigned many more children to the unhappy fate of not being citizens or subjects of any country.  Those children will accordingly be denied the protection of any government. 

Attempting to justify the change, Dr Ranjana Kumari from India’s Centre for Social Research said the law was put in place for the safety of the children.

"There have been reports of gay couples coming and taking children.  There have been reports of single parents coming and taking children," she said.

"[It's] for the safety and security of these children that the government doesn't want to be held responsible for, and especially India doesn't want to be held responsible for whatever happens to these children later in some time.

"You see, one has to understand that there are various possibilities. The possibility is that a child is produced like that who's loved by the parents and parents really want their own children, so they want to have this child.

"[The] other possibility could be that these children are misused. They are sold in the market - their organs are sold in the market. Who knows? I'm just talking about a very, very bad scenario, but it is possible."

This rather curious attempt at rationalisation seems to proceed from the logical fallacy that there is a qualitative difference between married heterosexuals seeking to have a child via surrogacy, as against a gay couple or cohabitants.

Whilst reported as an Australian-centric issue, the ramifications of the change to Indian surrogacy law are far-reaching.  India has long been a popular destination for UK-resident parents who seek to have a child through surrogacy.  Many of the issues affecting those like Mr Taylor-Burn and his partner will impact on expectant commissioning parents here.

Surrogacy has always involved complicated legal issues, and international surrogacy all the more so.  As the Indian situation reminds us, the legal framework continues to evolve, both here and abroad. 

Those considering surrogacy – whether as commissioning parents or surrogates – should seek specialist advice as early in the process as possible.  If there are potential problems with a surrogacy arrangement, early identification and management will help ensure a positive outcome. 


  1. Let's call it biological colonialism in reverse: Chinese couples are using IVF and rented American wombs to make new US citizens when the baby is born here. From the Global Times story: West Coast Surrogacy, in California, has worked with. If you are thinking to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

  2. Surrogacy is the arrangement by which a woman conceives, carries and delivers a child for another couple or individual. This woman is known as a surrogate mother or a gestational carrier. If you are thinking to go INDIA for IVF surrogacy, then you must search for Surrogacy India, Surrogate mother India, IVF India, IVF clinic India & IVF cost india. I found Go Surrogacy for this treatment in India. Hope you also like these.

  3. Surrogacy in India is available to people of all backgrounds. Many Western countries don't allow single parents or gay couples to use a surrogate.Before traveling to India, you need to ensure that you are well-organized and prepared, otherwise you could find that you encounter a legal headache. Make sure that you.<3

    Thank's & Regard's
    Best Surrogacy In India

  4. Doctors at Kiran Infertility Centre that gets around 120 foreign nationals for Surrogacy India say the move will be a drain on the economy.Dr Samit Sekhar, chief embryologist and surrogacy and IVF program director, said that as per the new directive, except a foreign "man and woman" who have been married for a period of at least two years, no one else will be eligible to have an Indian surrogate bear their child.

  5. The growing popularity of surrogacy Australia has changes the lives of many people. It is time for the government authorities to incorporate the required changes in the forms to avoid such inconveniences.