It took six years and multiple back-and-forths between two key Union ministries and the Delhi High Court to ensure an exit visa for a six-year-old child born through surrogacy to Indian-origin Australian citizens in 2019, before the Surrogacy Act came into force in 2022.In the absence of clarity among the two ministries – Ministry of Health and Family Welfare, the Ministry of Home Affairs (MHA) – and after several “procedural hurdles”, the MHA on May 21 directed its Bureau of Immigration to issue an exit visa to the child, subject to payment of late fees for overstay beyond 90 days. The MHA then informed the high court of its decision, recorded in an order by Justice Sachin Datta on May 26.An exit visa is permission granted to a foreigner to leave India in the absence of a valid visa or entry into a country. In the case of the child, born in India and staying here since, his passport as an Australian citizen had no entry stamp to India, thus requiring an exit visa to leave the country.The MHA’s decision came after the child’s father, an Australian citizen, moved the Delhi High Court earlier this year seeking directions to issue an exit visa for his child, which he had applied for nearly two years ago on April 28, 2023.He is expected to fly out later this month to Australia with his son, say his lawyers Rakesh Kumar and Puneet Kumar.The child’s parents are Australian citizens with Overseas Citizen of India (OCI) registration. Born in 2019 in India, the child obtained Australian citizenship in January 2023 following a court order and after complying with the necessary processes.The child’s mother, who suffers from Crohn’s disease, had decided to go for a gestational surrogacy in 2019 in compliance with Indian Council of Medical Research (ICMR) Guidelines, 2005, which required the execution of a surrogacy agreement with the surrogate mother and intended parent. This was prior to the Surrogacy Regulation Act, 2021, which only came into effect in January 2022. The baby was born in Indore in June 2019, and while his mother died in 2021 due to COVID-19, by January 2023, the boy’s father obtained the child’s Australian citizenship along with a Mumbai civil court order granting him permission to take the minor from India to Australia.Story continues below this adDays after issuing an Australian passport to the child in April 2023, his father applied for an exit visa on behalf of his son through the e-portal of the Foreigners Regional Registration Office (FRRO). In June 2024, the application was shown as ‘completed’ on the portal but with directions to “wait for further instructions.”However, on August 14, 2024, the Ministry of Health and Family Welfare (MoHFW) issued an office memorandum (OM), informing the MHA that as per provisions of the Surrogacy Act 2021 and its Rules 2022, foreign nationals are not eligible to avail surrogacy services in India and, for a couple of Indian origin (OCI cardholders), they have to obtain a certificate of recommendation from the National Board formed under the Act before availing such surrogacy treatment. The office memorandum also sought documents from the father with respect to the surrogacy, by way of clarification.In further bureaucratic back and forth, in November 2024, the MHA sought that the father submit a No-Objection Certificate (NOC) from the MoHFW, and days later, the MoHFW telephonically informed the father that they are not responsible for issuing any such NOC.The petitioners – father and son – argued that the Surrogacy Act and its Rules cannot apply retrospectively as it was not in place when the child was born, and had termed the MoHFW’s office memorandum of August 2024, directing them to submit proofs of requisite permissions as per the Act, as “illegal”.Story continues below this adWhen the case was first taken up by Justice Datta in April, it was argued that with the child obtaining admission in a school in Sydney for academic year 2025, the delay in the grant of visa is disrupting the child’s education and prolonged absence from regular classes at school has led to issuance of absentee notice by the school, making him likely to suffer cancellation of his admission. At the time of the court hearing, the Union government was granted time to obtain instructions.On May 26, informing the court, the Union government submitted that “during the year 2015, since there was no regulation on surrogacy in India, MHA had imposed restriction on grant of visa/exit permit to children born out of surrogacy to foreign nationals (including OCI cardholders).”“Further, during the year 2021, the Surrogacy (Regulation) Act, 2021 was introduced by the Ministry of Health & Family Welfare and Surrogacy Rules were notified in 2022. The Surrogacy Rules permitted surrogacy only for Indian nationals and OCI cardholder parents. However, in the instant case, surrogacy was commissioned…before commencement of Surrogacy Regulation/law in India in violation of MHA guidelines,” the government told the high court.It added, “Considering the peculiar circumstances of the case and in the interest of the child, the matter was examined in this Ministry. It has been decided to grant exit permit to the Petitioner No.1 after regularising his overstay period by charging appropriate financial penalty.”Story continues below this adTaking the MHA’s submission on record, Justice Datta thus directed that following payment of the necessary dues, the exit visa be granted to the child expeditiously, and disposed of the matter.