India (Finally) issues guidelines for issuing of passports to surrogate-born children

20 August 2015

Debra Wilson 

In 2014 a UK newspaper told the story of a Manchester couple and their difficulties in obtaining a passport for their surrogate-born child. Their comments appear reflective of many stories told by intended parents: “its almost like no one knows the process”. They explained further:

“when we ring the passport office helpline we get a request for a reference number but for overseas applications there is no reference number. They are adamant that there is a reference number but there isn’t… we know more about the process than they do.”

India’s lack of regulation of surrogacy is well known. A Bill, drafted by the Indian Council of Medical Research has been in process since 2005, is now in its third draft, and shows no real sign of moving forward. This lack of progress in regulation makes sense when one considers that the Bill would regulate (limit) a 2.3 billion dollar industry involving 1500 clinics across India.

The External Affairs Ministry has recently stepped forward, however, and has issued Guidelines “for the issue of passport to minor children born to Indian or foreign genetic parents through surrogacy in India”. The Guidelines require the “Genetic Parents” to submit:

  • The surrogacy agreement, duly registered under the Registration Act;
  • A certificate issued by head of fertility clinic;
  • A birth certificate issued by a competent authority in the name of the genetic parents of the surrogacy child; and
  • DNA profiling test establishing parentage by government or government approved laboratory.

While these Guidelines appear helpful, an immediate problem emerges: the lack of a “government approved laboratory” in India places a very large hurdle in the way of satisfying all four requirements. Fortunately, until such laboratory is approved, the Ministry has stated that it will accept an affidavit sworn by the genetic parents before an Executive Magistrate.

There is also likely a fifth, unmentioned, requirement, being that the intended parents demonstrate that they have paid all money associated with the surrogacy. This is currently seen as a requirement for issue of passports.

In other news out of India, there is (another) planned Bill in the pipelines requiring the payment of a bond, in case the intended parents refuse to accept responsibility for the child. Also, the Supreme Court is currently hearing an appeal from the 2009 Gujarat High Court decision in the Jan Balaz case, which held that children born in India to gestational surrogates are Indian citizens.