Guidelines for Commissioning of Surrogacy in India

Commissioning of Surrogacy in India

"Any person seeking a visa to India for purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents.  Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law"

It has come to the notice of Indian authorities that some foreign nationals are visiting India on Tourist visa for commissioning Surrogacy. This is not the appropriate visa category and such foreigners will be liable for action for violation of visa conditions. The appropriate visa category will be a medical visa. The clinics should not accept samples without the presence of the couples in India with proper medical visa. It should be made clear to the clinics that action could be taken against them if they admit any cases for surrogacy without ensuring the fulfillment of the conditions laid down by Ministry of Home Affairs. It will also be necessary in such cases to ensure that the surrogate mother is not cheated. Therefore, such a visa may only be granted if the following conditions are fulfilled:-

• The foreign man and woman are duly married and the marriage should have sustained at least for two years.
• A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the visa application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.
• The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.
• The treatment should be done only at one of the registered ART clinics recognized by ICMR.
• The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.

If any of the above conditions are not fulfilled, the visa application shall be rejected. As regards OCI/PIO card holders coming for commissioning surrogacy in India, it was noted that they would be travelling on a foreign passport but they will not require any visa since OCI/PIO Card enables them to travel in India without Visa. However, all the other conditions laid down in the instructions dated 9th July, 2012 would be applicable in their case also since they would be holding a passport of another country.

Before the grant of visa, the foreign couples need to be told that before leaving India for their return journey, ‘exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.

More details at http://boi.gov.in/content/surrogacy

With effect from February 27, 2014, the provisions for commissioning surrogacy in India, are the following:

Provisions applicable to OCI/PIO Cardholders for commissioning surrogacy in India

OCI/PIO Cardholders coming to India for commissioning surrogacy will not require a separate Medical Visa.  However, on arrival to India and before commissioning surrogacy, they will have to obtain a special permission from the FRRO/FRO concerned.  Such permission may be granted by the FRRO/FRO concerned subject to the following conditions:-

(i) The couple should be duly married and the marriage should have sustained at least for two years at the time of commissioning of surrogacy.

(ii) They should enclose a letter from the Embassy of the foreign country in India or the Foreign Ministry of the country with the application stating clearly that:

(a)       the country recognizes surrogacy and

(b)       the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.

(iii)The couple should furnish an undertaking that they would take care of the child/children born through surrogacy.

(iv)      The treatment should be done only at one of the registered ART Clinics recognized by ICMR.

(v) The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.

The FRRO/FRO concerned may grant exit to the child/children born through commissioning of surrogacy, subject to the following:-

(a) The OCI/PIO Cardholder had obtained the requisite prior permission from the FRRO/FRO concerned for commissioning surrogacy as mentioned above.

(b) The OCI/PIO Cardholder is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the OCI/PIO Cardholder and the liabilities towards the Indian surrogate mother have been fully discharged as per the Agreement.

(c) A copy of the Birth Certificate (s) of the surrogate child/children, along with photocopies of the passport and OCI/PIO card of the OCI/PIO cardholder, will have to be submitted by the OCI/PIO cardholder to the FRRO/FRO for record.

2.  The wife of a foreign national or OCI/PIO cardholder (who does not have an OCI/PIO card), who is not involved with the treatment in any way, may not require a specific Medical Visa.