Enzo O’Brien is seven weeks old.
He is an Australian citizen who holds an Australian passport but he is stuck in Nepal and it’s unclear if – or when – he will be able to come home.
Enzo is one of about 35 foreign national babies, 11 of whom are understood to be Australian, who is currently being denied an exit visa to leave Nepal.
His Australian parents Lisa MacDonald* and Dominic O’Brien are desperate.
Enzo is their son who was born via an Indian surrogate in Nepal earlier this year. Due to a chronic health condition Lisa was not able to carry a child. At the end of last year, after what Lisa described to Mamamia as five years contemplating surrogacy, their dream of becoming parents finally became real.
They decided to take the plunge and decided upon Nepal after a friend who had a positive and successful surrogacy experience there recommended it. After twelve months of conversations and deliberations with doctors, they went to Nepal last year where Lisa underwent the necessary medical procedures for a successful implantation.
“It was awful. You don’t do it on a whim. It was really really hard and horrible,” Lisa explains. It was exacerbated by her medical condition that needs constant management.
Luckily it was successful and they returned to Australia as quickly as possible so Lisa could see her doctors.
Any luck that had been on their side has since diminished. At the time of Enzo’s conception, surrogacy was legal in Nepal but on the 25th of August this year the Nepalese Supreme Court declared commercial surrogacy to be illegal. What the judgment failed to address was the legal status of babies already conceived using surrogacy.
“It’s very clear the practice of surrogacy can no longer be engaged in but it doesn’t talk about existing pregnancies,” Dominic O’Brien told Mamamia from Nepal.
“You can’t ban a pregnancy or stop childbirth once it’s in motion so there are a whole lot of babies being born with no exit strategy.”
Lisa and Dominic arrived in Kathmandu earlier this year to meet their baby boy oblivious to the battle they were about to face.
“We were told it would be two weeks [before we could bring Enzo home] which now seems ridiculous. It turned out to be a lot longer,” Lisa says. “One of the other parents actually came around and said to us ‘I don’t think you realise what is happening’.”
They quickly came to understand the Nepalese government was unwilling to provide an exit visa for Enzo to leave the country. It’s been seven weeks now and there is no indication that Enzo will be able to return to Australia anytime soon.
For Lisa, Dominic & Enzo the situation is complicated by Lisa’s health. In what Dominic described as the most difficult decision in their life, a few weeks ago Lisa returned home to Australia on account of needing medical support.
They begged Nepalese immigration to let Enzo go with them so they wouldn’t be separated, but to no avail. Instead Lisa boarded a flight to Australia in tears and Dominic left the airport in tears.
“There is no way she wanted to leave us,” Dominic says.
Right now Lisa is in Australia trying to lobby the Australian government to step in. Dominic & Enzo are in Kathmandu where Dominic is focused on pursuing whatever options are available to get Enzo and other babies like him an exit visa.
There are two alternatives.
“We can either go to the Nepalese Supreme Court and ask for an interim order that would instruct the government to grant an exit visa for babies in this situation,” Dominic explains. “That would involve presenting to a single judge and if that judge decided that order wouldn’t be made, we would have to appeal to the full bench of the Supreme Court.”
That wouldn’t happen until June next year at the earliest. And if the full bench decided against giving these babies an exit visa? “We are here indefinitely,” Dominic says.
A group of parents are preparing to make this case.
“Another option is that the Nepalese Prime Minister could instruct the government to offer these exit visas on humanitarian grounds,” Dominic says. “But we have no access at this stage and that is why we are really looking to the Australian government – and Prime Minister Malcolm Turnbull in particular – to ask for the release.”
The legal advice Dominic has received is that there is no legal impediment to release. In fact by denying these babies a visa Dominic says the Nepalese government is breaking their own immigration laws, contravening their new constitution, breaking numerous international agreements on the free movement of foreign nationals and violating the human rights of these babies.
Dominic says the Australian embassy in Nepal has been marvellous and Lisa says the Department of Foreign Affairs and Trade are working incredibly hard. But they are both calling on politicians to engage in this process.
“Politicians aren’t yet engaged,” Dominic says. “Eleven of Australia’s most vulnerable citizens are being held hostage in a foreign country and Malcolm Turnbull hasn’t said a word about it. It needs to be discussed by the government.”
When Dominic and Lisa will be able to bring their son home to Australia is only one of their concerns. A lack of formula in Nepal is a pressing problem which has so far been abated by family and friends flying formula in.
The fact Dominic’s visa will expire in December is also problematic: Lisa might be able to fly back in but given her health in practical terms it seems unlikely she would be well enough to look after their son alone in Kathmandu for long.
“Unless I can get my visa extended I don’t know what we’re going to do,” Dominic says. “If I’m forced to leave and leave our baby behind I don’t know what to do.”
Lisa’s biggest fear is that Enzo will have to stay in Nepal forever.
It’s a living nightmare.
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*Name has been changed.