Tuesday, March 5, 2013

Indian surrogacy law has not changed!!!

Just a "few" inaccuracies in this one, along with the ubiquitous  beat-up headline so not worthy of our national broadcaster. There has never been any talk of Australian babies being left stateless. Citizenship by descent is part of federal legislation - anyone interested in this can read the Australian Citizenship Act 2007. But hey, let's not let the facts get in the way of terrorising people pregnant through surrogacy in India (or anywhere else for that matter). 

India has no surrogacy law, therefore there has been no change to "the country's commercial surrogacy laws". (See in red below. Semantics? No, poor fact checking on behalf of ABC, which I personally find very disappointing as I helped organise this story and gave all the correct information, stressing the difference between a law and a visa requirement.

Let me make myself very clear. There are changes to visa requirements to enter India for the purpose of surrogacy, there is no change to laws that do not exist!

Read it and weep ...


Australian babies may be left stateless and unable to leave India as a result of changes to the country's commercial surrogacy laws.
In Australia, commercial surrogacy is illegal. The ban has resulted in a steady flow of heterosexual and gay Australians to India, where the unregulated fertility industry produces hundreds of surrogate babies for Australians each year. (My babies are not surrogates, they are not a substitution for anything).
But India's rules changed just before Christmas, excluding singles and gay and de facto heterosexual couples from commissioning surrogate babies. (You don't get a real one, just a substitution ... this writer surely cannot have passed journalism 101).
Australians now require medical visas and the Indian government is precise about who they will issue them to - heterosexual couples who have been married for at least two years.
Almost 400 babies were born to Australians using Indian surrogates in 2011 and a positive DNA test is all the Australian High Commission requires to issue citizenship by descent. (um, and a few other things, but again, let's not allow fact to muddy the angle of the article)
These changes are all about targeting particular people who access surrogacy, rather than assisting surrogates and the way that surrogacy is done.
Professor Jenni Millbank
But the sudden change in visa requirements has left dozens of expectant parents currently awaiting their babies' births in breach of Indian law.
(No peeps you are not breaching any Indian law!!! There are no surrogacy laws in India. You may be breaching a visa requirement if  you travel on a tourist visa, but you are not breaking an Indian law.)
Surrogacy law expert (debatable) Professor Jenni Millbank says babies could be left stateless if the Department of Immigration and Citizenship (DIAC) refuses to issue citizenship to infants created in breach of Indian lawNot much of an expert if she doesn't know the basic facts - there is no breach of Indian law, there is no surrogacy law to breach. There has never been any discussion of babies not getting Australian citizenship, this is pure speculation and I wish Jenni Millbank would just close her mouth or at least get her foot out of it!
"I think if this provokes a crisis within DIAC about the issuing of citizenship by descent," she said. (where's the rest of the sentence, this doesn't make sense).
"If they refused to grant citizenship by descent then we would be facing the prospect of children born in India to Australian parents being stateless, with no Indian citizenship, with no Australian citizenship and without the ability to travel across any international border. And just why would DIAC deny Aus citizenship only in India, and not Thailand, USA, Ukraine, Georgia, USA or anywhere Australians go to for surrogacy? 
"These changes are all about targeting particular people who access surrogacy, rather than assisting surrogates and the way that surrogacy is done."

Outside the law - not outside the law, there is no surrogacy law in India!!!

In Perth, expectant parent Paul Taylor-Burn and his partner Josh nervously prepare for the birth of their twins.
With commercial surrogacy banned in Western Australia and adoption only a remote possibility for the gay couple, India was the cheap (please don't use that word, it is not cheap!) , reliable destination.
"When we went over there 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.
But now, as they count down the days to their twins' birth, they know they are operating outside Indian law. They are not operating outside of Indian law, there is no surrogacy law in India! There is a vast difference between a visa requirement and a law!!!
"We know that we don't meet the new criteria. We know our contracts have been signed after the cut-off date, (what cut-off date?) but we don't really know what's going to happen," Mr Taylor-Burn said.
"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?" For what? Breaking a law that doesn't exist?
The crackdown has been driven in part by recent cases where surrogate babies born to gay parents have been unable to leave India because countries such as Germany, Italy and Japan have refused to grant infant citizenship. (We can thank Rotunda in Mumbai for 99% of the cases where babies have been stuck stateless thanks to their policy of giving treatment to anyone who signs a waiver stating they can get citizenship for baby.)
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? ... Are we potentially going to be prosecuted?
Paul Taylor-Burn
There have also been reports of babies being rejected by their commissioning parents and one reported case where an Australian couple took home only one baby, leaving its twin behind in India. 
Fertility specialist Dr Shivani Sachdev Gour says the changes have rocked the continent's (India is not a continent) surrogacy industry and made a huge impact on her business.
Her clinic and countless others have arranged cheap surrogates (oh please, cheap surrogates, what a disgusting thing to call a woman) for thousands of clients from Europe, North America, Asia and Australia, where commercial surrogacy is either banned or unaffordable.
Dr Sachdev Gour says more than one third of her clients are Australian gay men.
"What we are doing is we are pleading and requesting with the government. A body of doctors, about 1,200 doctors has written a letter and is arranging a meeting so that we can get a clarification," she said.
"The babies that are born go to families that have longed for these babies, that have gone to great lengths for these babies and provide a very loving environment for these babies. And I feel they have every right to have this."
But many Indians believe gays and singles should not have surrogacy rights and better regulations are needed.

'Safety and security'

Dr Ranjana Kumari from the Centre for Social Research says the laws have been put in place for the safety of the children. They are not laws, surely Dr Kumari knows this.
"There have been reports of gay couples coming and taking children. There have been reports of single parents coming and taking children," she said. (Yes we all just rock up in India and take children - pluck them off the street no effort required ... it's that easy!)
"[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.  (Is there any evidence that children born through surrogacy in India are mistreated? Perhaps she should focus on the children living in squalor in India or any country for that matter before pointing the finger at parents through surrogacy).
[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?
Dr Ranjana Kumari
"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."  (As it is possible a meteor will fall on your head tonight, anything is possible in life! But it doesn't mean it is going to happen. It is just as possible that people who can have children the natural way may chop up their babies to sell for spare parts, so why single out parents through surrogacy? Castrate the fertile I say, just incase they abuse their children ... oh. that's right, a lot of them do! What an absolutely disgusting comment. Illogical also, you spend $60,000 on surrogacy if you're lucky, how much would a kidney go for - IF you could find a buyer. How ridiculous!)
Dr Kumari has appealed to Australians to respect India's new regulations.
"I would think that any person with any conscience should not and will not engage in any kind of illegal activity, but that is not true. It's happening," she said. (What illegal activity Dr? Prove it. I appeal to you to stop talking rubbish.)
"If your country is not allowing you to have surrogacy and you come to India and produce a surrogate child, what will you call that?" (Um, I call "that" my son and daughter, who, BTW, I am not going to chop up for spare parts.)
The Australian Government will not say whether the High Commission will continue to grant citizenship to babies created in breach of Indian law. (Do I have to say it yet again??!!! There is no surrogacy law in India, therefore no breach).
But it says it is providing letters to Australians who have already entered into surrogacy arrangements to assist them in getting medical visas to collect their children.


Michael's surrogacy Journey said...

All I can say is that this whole thing is BULL S***. all it is, is more discrimination we as gays get in the world. India should do a follow up on parents that have children from there and show how well they are doing with there parents in the countrys they are from. I love my Isabella and I would die for this girl of mine. All this does is really piss me off. All the other gay couples or singles that want to be parents, that are giving to the Indian people,as in jobs, and helping there economy. From the clinics to the taxis, hotels, malls, markets, airlines, trains, busses,resturanuts and so on. We as gay people spend ALOT of money and always have. We have also been bigger tippers when we dine out. As they are hurting us they are hurting there own people less surrogates are being hired and less money coming into the clinics. But hey I am use to being hated and discriminated against. I am just glad I got in and out so fast and I pray every other gay couple and single get the same chance. Indian goverment has to open up there eyes, you are hurting your own people you are taking jobs away and taking money away from your people. We as gay couples and single make up almost half of these clinics clients, shame on you, and thanks for all you do Meg and I will always love Dr. Shivani.

I&D said...

What a lot of rubbish. I watched this story last night and just can't believe the ABC could waste my hard earned tax payer dollars on this crap. Constructive journalism would be appreciated.

Tom said...

If it's possible to have something worse than shabby reporting it is the media's use of 'experts' who willingly comment on subjects they are not fully informed about and then get it obviously wrong and/or go on to perpetuate erroneous and unhelpful myths and stereotypes. I think it's worth sending your comments to ABC's Media Watch program. Media outlets would probably love to be provided with a contact list of people who are recognised experts in their specific surrogacy-related field if such a list exists.

Anonymous said...

This article is so poorly written I just filed a complaint with ABC.

Will and Michael said...
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Alex W. said...

Hello Meg,
Thank you so much for clarifying this. We are a heterosexual couple who have been a long-term relationship but are not married. We are looking into surrogacy in India. The reckless reporting by the media and other blogs made us really worried but your article brought us hope. We'll check for more information on this.

I do have a question though, if you don't mind sharing: We are both U.S. citizens, so does this visa requirement apply to us as well? Based on your article, it seems that it only impacts Australians. So, American citizens can still go in with a tourist visa and get the exit visa for the baby, am I correct?

Thank you so much!


Amani (Meg) said...

Hi Alex

I'm afraid the visa requirements are for everyone, you have to travel on a medical visa, which you may not (most likely will not ) be able to get as to get the medical visa for surrogacy you have to be married for at least two years, If I were you I would attempt to apply for one and see how you go, the new rules state you "should" be married for two years, not that you "must" be married for two years. I know someone doing this, and will report back on how they go. It is ultimately up to each visa office in each country as to who they give the medical visa to, so if it does work with an Australian de facto couple, it may not be the same in USA< but I think it's worth a try.

SKhan said...

Well said, Meg! Horrible reporting. Your comment from Alex - she should check to see if her state has common law marriage and maybe she can get a document from the courts stating the length of their "marriage".

Kiwi-Americana said...

Hi Meg, this ABC reporting is horrendous and the reporter is incompetent to say the least. Is there a way to rebut this?

Thanks for sharing it.

Alex said...

Thank you, Meg! If you have updates in this regard, please do share. I'm guessing logistically, they can't block unmarried opposite-sex couples from getting medical visa for surrogacy unless they make it into a special category and check marriage licenses when they apply.


N - TwoUKDads said...

Thanks, Meg, for dispelling the myths. It's so sad that so many obstacles are put in our way, but at least no one can accuse us (us being all of those who need surrogacy to complete our families)of going into parenthood lightly.

Brian White said...

And you know what made me just fall to the floor laughing ?, the 'Specialist' (or whatever she was), saying that potentially the babies are used for organ harvesting ?

I mean like seriously WTF ??????????

Jacq said...

Thanks guys this has put my mind at ease a lot tonight, My partner and I are awaiting our first childs arrival in late July, our doctor has assured us that it doesnt effect us but the news has made us nervous. I am taking a couple of days off this week to make calls to all the places that might tell me whats going on. I let you know if I find anything out

Patsy said...

Hi meg,
Great blog!
Can you share with us what visa current Aussie IPs are applying for to pick up imminent babies? We saw that there's now a category for an "art surrogacy" in the drop down menu when applying online for a visa! We chose to ignore that option and go for the good ole med visa category! We see it, and from the check list doc, that we aren't planning we are done! Our invite letter from our clinic doesn't mention surrogacy either as we asked them not to. What are you advising clients to do? Our lawyers seem to be pretty clueless too!!

Amani (Meg) said...

HI Patsy, singles are using tourist visas as they can't get medical visas (though I heard just yesterday a single dad from Sydney got a medical visa) ... marrieds are using medical visas, not the ART one, the one that has the list of requirements for surrogacy. At this stage if you're pregnant the basic rule of thumb is single/de facto - tourist visa with no mention of surrogacy as you won't get medical visa; married for 2 years, medical visa. Until things yet again change! None of our singles travelling on tourist visas have had any issues, clearly they can't get medical visa so once at FRRO when questioned about the visa they have explained as such and no fine and baby's exit visa has been granted. This is Delhi FRRO however, now idea what happens in Hyderabad or Mumbai.

Patsy said...

Thanks so much! We are going for standard med visa stating for ivf+icsi and not mentioning surrogacy. We know we won't get the ART one as not married. We just want in and out as soon as possible! We're lying but not telling the whole truth. How do they know if we have a surrogate about to have our baby anyway, plenty of people don't have successful cycles. Perhaps a more regional FFRO is a good option too! We were thinking of chennai or Cochin (lovely spot!) our clinic is there. What gets me is they didn't mention any changes to the marital status in July 2012 when we signed contracts. The consul tells me the new rules came in in June 2012. Do you think exit through smaller cities is a good idea? Or stick to Delhi. Very grateful for your reply Meg! L&L

Amani (Meg) said...

HI Patsy

A medical visa is a medical visa and if there are no provisions for singles/defacto to travel to India on the "right" visa then you have to do what you have to do.

Forget regional FRROs, Mumbai is now sending singles to Delhi, first client from Mumbai just reported this, is your clinic in Mumbai? Read the next post about that, it's just ... crap.

Patsy said...

Hi meg
Clinic is in kochi (Cochin) it's a really good one and Kerala is so lovely and peaceful. We fly in and out of B'lore. Also a lovely city and a great vibe. Wev prefer the south to the north. Nicer weather and lovely seafood!
We hoped to fly back through b'lore and just have internal flights to Delhi. We wanted to try for another but looks like will have to delay for a while. Pity because we love India and the people and culture.

Betty researching surrogacy and law said...

Thanks for sharing this! I had no idea about half of this with surrogacy in India. I've been learning a lot but after reader comments I'm not sure what to believe.