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Surrogacy Laws May Leave Australian Babies Stateless

Illustration: Simon Bosch.Infertile Australian couples hoping to have a baby have already struggled with the illegality of commercial surrogacy in their country, but now they must deal with even more complications.

India, the country where heterosexual and gay Australians have flocked to find a surrogate, will now exclude “singles and gay and de facto heterosexual couples from commissioning surrogate babies.”

To make matters worse:

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.

This type of regulation not only seems unnecessary, but is clearly discriminatory. It shames me to think that some countries are so far behind when it comes to accepting the “non-traditional” family.

What will become of the parents whose babies were born after the laws changed? Will they be prosecuted? Will their baby or babies be allowed to leave India? This has caused quite a dilemma.

Surrogacy law expert 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 law.

“I think if this provokes a crisis within DIAC about the issuing of citizenship by descent,” she said.

“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.”

In the words of expectant parent Paul Taylor-Burn and his partner Josh:

“We know that we don’t meet the new criteria. We know our contracts have been signed after the 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?”

Here’s to hoping the best for these families. If only we could do more.


3 comments for “Surrogacy Laws May Leave Australian Babies Stateless”

  • Jon

    Sad situation but ultimately the Australian government will probably intervene to help these guys given citizenship is conferred by descent (blood/DNA) in Australia, same as US. Those babies will be Australian nationals the minute they are born. That’s not to say the Indian government and the bureaucrats will make their lives easy if they choose to make them and others scapegoats for those who are not following their laws. KEY OPERATIVE WORDS: THEIR LAWS.

    Andy, I’ve said this so many times on your board regarding this issue and the current state for prospective patients who want to go to India for surrogacy: DO NOT BELIEVE A WORD ANY INDIAN SURROGACY CLINIC TELLS YOU OR INDIAN LAWYER ABOUT LOOPHOLES FOR THOSE WHO DON’T QUALIFY FOR MEDICAL VISAS. Those who are taking this chance may find themselves in a very ugly situation whose ultimate cost will far exceed what it would have cost to do this in the US. Should people still wish to ignore the Indian government and also the US State Departments warnings, then at the very least they should enter into a bullet-proof legal agreement with their clinic that will shift the burden of acquiring exit papers onto the clinic. I think then they will be surprised how quickly the clinics drop them as clients.

  • IVF/Surrogacy laws are in a LEGAL LIMBO everywhere. US Immigration laws does NOT allow single men or gay fathers on US green card to bring a child born outside the US which includes IVF children in India. While India has allowed surrogacy for gay men and single men, laws are placing innocent IVF children in LEGAL LIMBO. Is that any violation of human rights of the child? What if the samples are swapped accidentally by the IVF clinic and now NO DNA match will exist. Whose fault is that? the innocent IVF baby? While we all get caught up in rights for adults, what about rights of the innocent IVF child?

  • Megan Sainsbury

    Medical visas are required for anyone from any country, not just Australia. In the past people travelled on tourist visas, they can still do this but in my opinion should not do this to get around the visa requirements as no-one knows what will happen when it comes time to get an exit visa for baby from the various FRROs in India. Some clinics are backdating agreements to before the visa requirements changed and still taking clients who don’t qualify for a medical visa. This places clients in a precarious position as 1. there is no guarantee FRROs will process exit visas for babies born to people in this situation and 2. clients travelling on the wrong visa may be fined or charged with breaking visa rules. The situation in India is too precarious for singles not already enrolled in the process, and those who are face uncertainty due to there being no official clarification or guarantee from Indian Government they can an exit visa for baby. At this stage people travelling on tourist visas for baby pick up is fine, but for how long?

    There is no talk of babies from Australia parents being born stateless, The Australian Citizenship Act of 2007 guarantees Australian citizenship by descent, Jenni Millbank’s comments are speculative at best.

    The bottom line is that anyone not able to get a medical visa for the purpose of surrogacy in India SHOULD NOT TRAVEL ON A TOURIST VISA, and the more responsible clinics will not take you as a client.

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