Is surrogacy legal in India

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Surrogacy contracts in which a woman declares that she is willing to undergo artificial or natural fertilization or to have an embryo not originating from her transferred to her or otherwise to be carried to term are immoral in Germany and therefore void.

The activities of doctors in connection with surrogacy are punishable in Germany under the Embryo Protection Act. Surrogacy placement is also a criminal offense under the Adoption Placement Act. The commissioning “intended parents” do not make themselves liable to prosecution.

In India, surrogacy is not regulated by law. A bill to regulate surrogacy exists, but has not been pushed forward by parliament or the government for years.

According to German law, the genetic descent of a child from surrogacy does not in principle establish any legal descent from the "intended parents".

However, the legal descent of the child from a German parent is a prerequisite for acquiring German citizenship and thereby justifying the right to a German passport.

According to German law, the mother of a child is the woman who gave birth to it, i.e. the surrogate mother and not the “mother of choice”. The motherhood of the woman who gave birth to the child can neither be contested, nor can this motherhood be disposed of by contract. From this it follows that German bodies cannot take over the legal valuation of a foreign birth certificate from which the “dream mother” may emerge as the legal mother. A German “dream mother” cannot convey her German citizenship to the child because she is not legally related to the child.

A German “dream father” cannot effectively establish his paternity from a surrogacy contract under German law.

In the case of a surrogate motherhood, under German law, under certain conditions, he can establish his legal paternity by acknowledging paternity, but only if the surrogate mother is single. However, due to the socio-cultural conditions in India and the requirements for being selected as a surrogate mother, surrogate mothers in India are typically married. Nevertheless, according to our experience, clinics and intermediaries often offer surrogate mothers who are allegedly single. It is strongly advised not to respond to such offers.

All documents submitted to a German diplomatic mission in India for a passport application or a desired authentication of paternity are subjected to a detailed document review, and the alleged singleness of the surrogate mother has so far not withstood a review.

It is not possible to enter Germany from India with a child born from a surrogate motherhood without the corresponding entry documents. According to the Residence Act, a visa for family reunification of a child born by a surrogate mother in India to the "intended parents" in Germany is not possible, as the child is not related to the intended parents.

There is no entitlement to reunification of the child as part of a possible - so to speak, as a last attempt to enter Germany - a guardianship relationship obtained in India. At best, processing times of several years must be expected, which will pass until there is a legal basis and the necessary consents to allow the child to join a foster relationship (possibly with the aim of a later adoption).

The German diplomatic missions in India therefore expressly warn of the immense problems that will arise if the child wishes to immigrate to Germany, and urgently advise against commissioning a surrogate motherhood in India.

Even under the most difficult human circumstances, there is no possibility for the German diplomatic missions in India to realistically promise the child to enter Germany.

For the above reasons, the German diplomatic missions abroad do not issue the health and safety certificates or insurance policies that are usually required by the clinics regarding the acquisition of German citizenship. They also do not give any guarantee that the child resulting from surrogacy will leave the country.