Australian Child born through Surrogacy got Exit Visa

After a 6-year legal battle, a 6-year-old Australian child born in India via surrogacy has finally received an exit visa. This landmark decision by India's MHA, influenced by the Delhi High Court and inter-ministry intervention, highlights the complexities of international surrogacy laws.

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Context: An Exit visa was granted to a 6-year-old Australian child born through surrogacy in India in 2019, finally granted by intervention of the Delhi High Court and coordination between the Ministry of Health & Family Welfare (MoHFW) and the Ministry of Home Affairs (MHA).

What is an Exit Visa?

An exit visa is a formal permission granted to a foreigner residing in a country without a valid visa to leave that country.
It is issued in exceptional situations, such as:
- Overstayed without valid immigration documents.
- Foreign nationals (including OCI cardholders) who do not have valid entry stamps or legal entry documentation.

Types of Surrogacy

Altruistic Surrogacy (✅ Allowed in India): The surrogate mother does not receive any monetary compensation, except for medical expenses and insurance coverage.

Done voluntarily, often by a close relative or family member.
Aimed at helping childless Indian couples.

Commercial Surrogacy (❌ Banned in India): The surrogate mother is financially compensated beyond medical expenses.

Often exploited poor women, leading to ethical and legal concerns.
Was banned due to misuse and exploitation.

Surrogacy (Regulation) Act, 2021 – Key Provisions

Surrogacy is when a woman carries and gives birth to a child for an intending couple, and hands over the child post-birth.

Regulation:

Commercial surrogacy is banned.
Altruistic surrogacy is permitted under specific medical necessity.
Surrogacy is not allowed for purposes like sale, prostitution, or exploitation.
Only allowed for medical indications and diseases specified in regulations.

Eligibility Criteria:

For Surrogate Mother:
- Must be a willing, married woman, aged 25–35 years.
- Must have at least one biological child of her own.
- Cannot act as a surrogate more than once in her lifetime.
- Needs a certificate of medical and psychological fitness.
For Intending Couple: Must obtain:
- A Certificate of Essentiality (medical justification).
- A Certificate of Eligibility (age, marital status, childlessness).
- Indian widow or divorcee woman (35–45 years) is also allowed surrogacy if other conditions are met.
Rights of the Surrogate Child:
- Treated as the biological child of the intending couple.
- Entitled to all rights and privileges available to a natural-born child.
Prohibition of Abortion: A Surrogate mother cannot be forced to abort except under conditions specified by law.

Institutional Framework

National Assisted Reproductive Technology & Surrogacy Board (headed by Union Health Minister):
- Advises on policy.
- Monitors implementation.
- Sets standards for clinics.
- Regulates infrastructure and manpower.
State ART and Surrogacy Boards:
- Established in each State/UT with legislature.
- Responsible for local oversight and regulation.

Surrogacy (Regulation) Rules, 2022

In March 2023, an amendment prohibited the use of donor gametes, mandating both gametes (sperm and egg) to come from the intending couple.
In October 2023, the Supreme Court in Arun Muthuvel vs. Union of India allowed surrogacy using a donor egg for a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, stating the restriction was prima facie contrary to the objective of the Act.

2024 Amendment to Surrogacy Rules

The 2024 amendment allowed use of donor gametes in surrogacy under medical necessity.
The benefit is permitted only when the District Medical Board certifies that either partner suffers from a medical condition requiring use of a donor gamete.