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By LL News|Email the author|Aug 01,2013   (2441 views)
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.

But India`s rules changed just before Christmas, excluding singles and gay and de facto heterosexual couples from commissioning surrogate babies.

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.

But the sudden change in visa requirements has left dozens of expectant parents currently awaiting their babies` births in breach of Indian law.

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, 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,` he said.

`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
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, 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.

`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.

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.
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 surrogacy industry and made a huge impact on her business.

Her clinic and countless others have arranged cheap surrogates 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.

`There have been reports of gay couples coming and taking children. There have been reports of single parents coming and taking children,` she said.

`[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.

`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.`

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.

`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?`

The Australian Government will not say whether the High Commission will continue to grant citizenship to babies created in breach of Indian law.

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.
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