Surrogacy in India for Aussies! we help for Australians with Surrogacy in India, Legal Guidelines
Adding no line to make one clear about surrogacy in India, it is needed to keep in mind that India is rising as a forefront in international surrogacy and has been one-stop destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Also Indian clinics are going more competitive at the same time, not just in the pricing, but in the retention of Indian females as surrogates.
So Clinics in India for surrogacy treatments charge from patients roughly a third of the price compared to the procedure in the Australia or UK. Though surrogacy in India renders moderately low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Japanese Baby’s case has held that commercial surrogacy is allowed in India with a direction to the Legislature to surpass an apt Law governing Surrogacy in India.
At present, the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines seem as the guiding force. By giving due regard to the apex court directions, the Legislature has enacted ART bill, 2008 that is still pending and gets itself expected to come in force somewhere in the next coming year. Specifically, the law commission of India has appraised the Surrogacy Law keeping in mind that India is an International Surrogacy destination.
Yes, International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par else the concerns and interests of parties involved will continue uncertain and thus, providing due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system.
The Law Commission of India has submitted the 228th Report on “Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy.” The following observations had been made by the Law Commission: –
- Arrangement to surrogacy is likely to be governed by contract amongst parties, which will hold all the terms necessitating consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all practical expenses to bearing child to full term, motivation to entrust the child born to the commissioning parent(s), etc.
- A surrogacy arrangement should offer for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and following willingness of none to get delivery of the child.
- A surrogacy contract should essentially look after life insurance cover for surrogate mother.
- Legislation itself should know a surrogate child to be the legitimate child of the commissioning parent(s) without being any need for adoption or even assertion of guardian.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be defended.
- Sex-selective surrogacy should be forbidden.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
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In addition, the report has come mainly in support of the Surrogacy in India, underlining a proper way of operating surrogacy in Indian conditions. On the other hand, this appears as a great step forward to the present situation. Thus, we could wait for a legislation to get hold of early 2011 with the passing of the Assisted Reproductive Technology Bill intending to legalize the surrogacy business.
For Australians, surrogacy in India is permissible. As a party to the United Nationals Convention on the Rights of the Child, Australia is dedicated to protecting the fundamental rights of children.
While Australia does not have obligations toward children who are not within its authorities, intense caution is exercised in cases involving surrogacy arrangements entered into overseas to make sure that Australia’s citizenship provisions are not used to avoid adoption laws and other child welfare laws.
Determining Australians’ Citizenship
Children born abroad to an Australia are eligible to be documented as Australians’ citizens. For a child born through surrogacy to get Australians’ Citizenship and obtain a Australia’s passport, sufficient proof must be presented showing:
Children born through Surrogacy Arrangements in India for Australians
Anyone entering into a surrogacy arrangement outside Australia is urged to use extreme caution. They should confirm that they are well-informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are responsive of the legal status of surrogacy in the country in which the arrangement is to take place.
While Indian legislation in respect to surrogacy gets itself limited, the Indian laws are likely to change in response to the growing demand for surrogacy arrangements. However, India legalized commercial surrogacy in 2001. The Indian Council of Medical Research and Ministry of Health and Family Welfare, have composed well The Assisted Reproductive Technologies (Regulation) Bill 2010 that is currently with the Indian law ministry for approval.
Legal Necessities for Australian citizenship by descent to child born outside Australia
- As a result of surrogacy arrangements, applications for Australian citizenship by descent for children born outside Australia get evaluated well according to the legal requirements set out in the Australian Citizenship Act 2007 (the Citizenship Act).
- A child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if the person with legal guardianship of the child consents to the application.
- In addition to the general documents required to applications for Australian citizenship by descent, children born in India as a result of surrogacy arrangements need to be accompanied by:
- Evidence that the child is the biological child of the intended parent;
- Evidence that the intended parent (s) is also recognized as the legal parent of the child.
- The intended/commissioning parent and child will be asked to undergo DNA testing in accordance with departmental guidelines (see further information below on DNA testing).
- The intended/commissioning parents will also need to provide written advice from a panel lawyer who is an expert in Indian family and/or contract law. This advice should include comment on the general legality of the contract (with reference to the provisions of Indian legislation that make it valid) and whether the contract confirms the legal parentage of the child (with reference to the relevant provisions of Indian legislation). It should also include comment on the following elements and state the grounds on which the lawyer is satisfied that these elements are met:
- Whether all parties consent to the contract;
- Whether the contract is legally enforceable;
- Whether the contract gives full legal parental rights to the intended/commissioning parent(s); and
- Whether the contract includes evidence that all parties are still consenting and still agree to the contract after the birth of the child concerned.
- The lawyer should also state their level of experience and accreditation in the field, and declare any potential conflict/s of interest, such as whether the lawyer or their firm was involved in drafting the surrogacy contract.
DNA testing – Surrogacy cases
The child and the Australian citizen intended parent are to be requested to endure DNA testing. In this regard, please note:
- You will need to meet all costs linked with DNA testing.
- The Australian citizen intended parent is asked to undergo DNA testing in Australia.
- In India, DNA tests for the child must be performed by specified Panel Doctors in New Delhi or Mumbai.
- Only the Panel Doctors are authorized to do the DNA test. You should not make appointments for a DNA test with any other Panel Doctor, as the results will not be adequate for the purposes of citizenship application and will have to be frequent, with consequential delays to processing and extra cost for applicants.
- At the same time as the newborn child may take on their DNA test in Mumbai by an authorized Panel Doctor, the Australian citizen intended parent will require to travel at their own cost to New Delhi to experience DNA testing so that it may be observed by an Australian Government official.
- Travel costs linked with the DNA tests are at the applicant’s own expense.
- Panel Doctors are required to make use of exact testing kits, which must be offered to them via a National Association of Testing Authorities (NATA) accredited laboratory that can make happy the department’s testing requirements in an international context. A list of NATA-accredited DNA testing laboratories could be found under Accreditation – Facilities and Labs – Forensic Science – Parentage Testing on the NATA website.
- The DNA sample and completed forms will be couriered to the DNA laboratory in Australia for assessment.
- Fact Sheet 1259i ‘Information about DNA testing for visa and citizenship applicants’ contains further information on DNA testing. This fact sheet is available online at: .
- If you undertake DNA testing, it is your liability to contact one of the suggested laboratories to arrange for the testing.
Once you have selected a DNA laboratory, you must give an opinion to the Australian High Commission in New Delhi of the details of the laboratory you have selected. Then, The Australian High Commission will mediate with you and the laboratory regarding testing arrangements. We will give you with a DNA testing offer letter which will comprise a reference number which you should include in any correspondence with the Australian High Commission in New Delhi. Also we will offer you with a statutory declaration for the laboratory to complete confirming they can please the department’s testing requirements.
Procedure to DNA testing in India
- Before you leave Australia
- After you arrive in India
- What to take place next?
- Tips to make the process as quick and easy as possible
- Advise to the Australian High Commission by email that you have become involved a surrogacy agreement. The Australian High Commission is likely to give you with a DNA testing offer letter which will comprise a reference number and a statutory declaration for the laboratory to accomplish.
- Choose the NATA credited laboratory you are likely to make use of for DNA testing.
- Do a contact with the laboratory and inquire about the testing procedure, the expected timeframe to get the results, the cost involved and any other questions you have to. Make sure that the laboratory could satisfy the department’s testing requirements in an international context by inquiring them to accomplish the statutory declaration sent to you earlier.
- Arrange for the Australian citizen parent to experience DNA testing in Australia.
- Make a decision whether you would like your child to undergo DNA testing in New Delhi or Mumbai.
- Apply for your selected laboratory to send the DNA testing kit and instructions to India.
- If the DNA testing (for the new born child/children) will be done in New Delhi:
1) Contact to the doctors, or the concerned person in Delhi responsible to do your surrogacy treatments.
2) Please carry at least two passport photos for each person being examined, the forms sent to you by the laboratory, the client consent pro forma and the child’s birth certificate.
3) The Panel Doctor is liable to direct you through the testing process.
4) The Panel Doctor will send off the DNA sample(s) and complete forms by courier on the same day. It will take just about three working days for the samples to arrive in Australia.
- If the DNA testing (for the new born child/children) is to be done in Mumbai:
1) Contact to the doctors, or the concerned person in Mumbai responsible to do your surrogacy treatments.
2) Please take at least two passport photos for each person being tested, the forms sent to you by the laboratory, the client consent pro forma and the child’s birth certificate.
3) The Panel Doctor is to guide you through the testing process.
4) The Panel Doctor is liable to send off the DNA sample(s) and completed forms by courier on the same day. Yes, it is to take about three working days for the samples to arrive in Australia.
- The laboratory will advise the Australian High Commission once the test results are completed.
- The Australian High Commission in New Delhi seems responsible to make a decision on all applications for citizenship by descent in relation to children born via surrogacy arrangements in India.
- This means that whether your child/children have undertaken DNA tests in New Delhi or Mumbai, the application for citizenship by descent must be forwarded to the Australian High Commission in New Delhi for assessment and decision.
- If the child gathers all the requirements, the High Commission is to grant the child citizenship and give a citizenship certificate.
- Read all the information on this website (www.citizenship.gov.au) before contacting this office.
- Download form 118 Application for Australian citizenship by descent and complete the form as soon as your child is born. (See: Form 118)
- Get passport sized photos of your baby as soon as possible, as you will need photos for the citizenship application, DNA testing forms and passport application.
- Obtain a bank demand draft for the citizenship application fee. To find out the current fee, please go to www.immi.gov.au/allforms/pdf/1298i.pdf. Please note that if you are lodging more than one citizenship application at the same time, the fee for the second application is less than the first. Also note that a bank demand draft is the only acceptable form of payment for the citizenship application fee. The demand draft should be made payable to the ‘Australian High Commission New Delhi, payable in New Delhi.
- You could lodge your child’s citizenship application as soon as you have completed it. You do not need to wait for the DNA testing to lodge the application. (See: www.india.embassy.gov.au/ndli/vm_citizen_lodge.html.)
- For any additional queries regarding Citizenship or DNA testing which is not covered in the website, please contact us by email at email@example.com.
- For any further queries regarding passport applications which are not covered in the website, please contact the Consular section of the Australian High Commission New Delhi.