If the parents of newborn Noah Allen-Drury are lucky, their son will sleep through the noise as their flight from India lands in Sydney this morning.
Noah’s gay parents, however, are aware of legal turbulence that could prohibit the surrogacy arrangements that fulfilled their wish for a child.
A growing number of male couples from Australia and other Western countries are hiring surrogates in India to bear children, but that might no longer be possible if a draft bill to regulate IVF in India becomes law.
R.S. Sharma, the secretary of the committee writing a bill to govern assisted reproductive technology (ART), told the Herald that unless gay and lesbian relationships are legalised in India, gay couples would be excluded from hiring surrogates.
Delhi’s High Court recently overturned a 150-year-old section of the country’s penal code that outlawed ”carnal intercourse against the order of nature”.
However, gay activists warn this ruling, which in effect decriminalised sodomy, does not legalise gay relationships, leaving the status of such relationships unclear.
“If our government does not permit gay relationships, then it certainly will not be permitted for foreign gay couples to come to this country and have a [surrogacy] agreement,” said Dr Sharma, who is the deputy director-general of the reproductive health and nutrition division at the India Council of Medical Research.
John and Darren Allen-Drury, who live in the Blue Mountains, raced to India earlier this month when their surrogate mother entered labour. She gave birth to Noah on April 8. John Allen-Drury said changes to India’s laws would be a great disappointment, if passed.
”It would prevent a lot of same-sex couples from coming here,” he said.
Although some gay couples sought surrogate mothers in the United States and Thailand, ”India really is the closest country to Australia that offers affordable surrogacy,” he said.
The draft bill could make it difficult for all Australian couples to use Indian surrogates.
One stumbling block would be a requirement that foreign countries guarantee they will accept the surrogate child as a citizen – before a surrogacy could begin.
Dr Sharma said foreign couples would have to obtain a document from their embassy or foreign ministry pledging the surrogate child citizenship of their country. “Only then will they be entitled to sign an agreement with a surrogate or an ART clinic,” he said.
Parents using a surrogate would also be obliged to accept the baby even if it was born with abnormalities.
”Under the Australian Citizenship Act, there are no guarantees,” a spokesman for the Department of Immigration and Citizenship said on Friday. ”What you can infer from this is that while it’s not illegal, we certainly wouldn’t be encouraging it by giving a rubber stamp to anyone who entered into such an agreement.”
Mr Allen-Drury said surrogacy in the US cost $200,000 or more. In India the arrangements could be made for $40,000 to $50,000. Thailand’s laws were changed last year to stop surrogacies for same-sex couples, although it remains legal for single males.
Mr Allen-Drury said a requirement for the Australian government to guarantee citizenship before a surrogacy could begin was impractical. ”That would just close the door,” he said.
Trevor Elwell and his partner, Peter West, have twin girls, Evelyn and Gaia, from a surrogate mother in Mumbai. Mr Elwell predicted parliamentary inertia meant the Indian laws were months or years off. But he was concerned that interim guidelines could be adopted and, in effect, exclude same-sex couples.
Mr Elwell said the citizenship proposal could pose an insurmountable hurdle.
”If you want to do that process earlier and confirm citizenship, you’re going to have to have a government process upfront,” he said.
The demand for a guarantee of citizenship meant the Australian government would have to grant it on the basis of a contract it did not recognise.
”It is a bit of a tangle, so it might affect heterosexual couples in the long run,” Mr Elwell said.
Since the publicity after they got their twins, Mr Elwell and Mr West say they have helped more than 100 couples – some gay, some straight – arrange a surrogate mother in India.
”The tip of the iceberg may have been us.”
Source: The Sydney Morning Herald (26 April, 2010)