As per MHA, Foreign nationals are visiting India on Tourist visa for commissioning Surrogacy. This is not the appropriate visa category and such foreigners will be liable for action for violation of visa conditions.
The appropriate visa category will be a medical visa.
The clinics should not accept samples without the presence of the couples in India with proper medical visa.
It should be made clear to the clinics that action could be taken against them if they admit any cases for surrogacy without ensuring the fulfillment of the conditions laid down by Ministry of Home Affairs.
It will also be necessary in such cases to ensure that the surrogate mother is not cheated.
Therefore, such a visa may only be granted if the following conditions are fulfilled:-
1. The foreign man and woman are duly married and the marriage should have sustained at least for two years.
2. A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the visa application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.
3. The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.
4. The treatment should be done only at one of the registered ART clinics recognized by ICMR.
5.The couple should produce a duly notarised agreement between the applicant couple and the prospective Indian surrogate mother.
If any of the above conditions are not fulfilled, the visa application shall be rejected. As regards OCI/PIO card holders coming for commissioning surrogacy in India, it was noted that they would be travelling on a foreign passport but they will not require any visa since OCI/PIO Card enables them to travel in India without Visa. However, all the other conditions laid down in the instructions dated 9th July, 2012 would be applicable in their case also since they would be holding a passport of another country.
Before the grant of visa, the foreign couples need to be told that before leaving India for their return journey, ‘exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.