In light of the new guidelines that were enunciated last month, there is understandable confusion and concern in India as to whether they apply retroactively to Intended Parents and their Gestational Carriers who have already undergone IVF or are pregnant:

The home ministry’s guidelines tightening visa norms for foreigners seeking children through an Indian surrogate have created confusion in various quarters. Foreigners who are midway in surrogacy procedures are worried that their future hangs in balance, even as doctors question the rationale behind some new provisions. There is, however, no denying the need for regulation given that the passage of the Assisted Reproductive Technology (ART) Regulation Bill 2010 has been long overdue.

TOI (January 18) highlighted that the home ministry has introduced new visa norms for foreigners seeking to rent-a-womb in India with stringent eligibility criteria. Only couples married for two years and those whose countries recognize surrogacy, among other clauses, could apply for a medical visa for surrogacy. They thus disqualify gay couples and single individuals.

“The new provisions have brought in a dilemma for several gay foreigners and singles, who are undergoing ART procedures in India before the norms came in,” points out Hari G Ramasubramanian, partner of Indian Surrogacy Law Centre, Chennai. He said one of his clients was due to have a child in June-July as per the old norms but there is no clarity if the new norms would be applicable to him too. “The ministry has not given any date of commencement for the guidelines,” he said.

Sources at the foreign regional registration office here said they had written to the ministry last week seeking a clarification about the cut-off date for implementation of the new norms.

In a letter to the deputy commissioner of police, Dr Gautam Allahbadia, medical director of the Rotunda centre for human reproduction, Bandra, questions the provision requiring foreigners seeking surrogacy in India to be married for at least two years. “The statement is not in accordance with certain clauses of the draft ART Regulation Bill 2010 issued by the ministry of health & family welfare,” he states, pointing out that the bill in many clauses clearly mentions that unmarried couples, as well as single persons, can commission surrogacy.

Doctors question the rationale behind the “two years” clause, as a couple married in their forties, for instance, may want to bear a child through surrogacy within the first year itself.

Advocate Amit Karkhanis, on behalf of an apex body of IVF clinics, plans to petition the home ministry. “We are okay with the government coming out with guidelines, but there has to be some logic,” he says. Doctors, for instance, explain that the registration of ART clinics is nascent and under way. In that backdrop, the ministry condition requiring foreigners to undergo the procedure only in registered clinics may be ahead of its time.

While I have no desire to frighten anyone already in the midst of an IVF cycle or pregnancy in India, I implore you to seek out legal advice in India regarding your compliance with these new guidelines and the ramifications if you are non-compliant. Should these guidelines be applied ex post facto, many international Intended Parents could find themselves trapped in India without a passport to return home with their baby.