The United States Citizenship and Immigration Services Department has made a policy decision expanding the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include non-genetic gestational mother, (i.e.) surrogate mother using assisted reproductive technology. This would effectively mean that the surrogate mother would have a right to petition for US citizenship if she is a surrogate for couple holding US citizenship and she is considered to be the legal parent of the child at time of birth of the child.

The following are few of the policy highlights as found in the website of the United States Citizenship and Immigration Services:

  • A “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the
    “natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she
    is the legal parent at the time of birth.
  •  A gestational mother has a petitionable relationship without a genetic relationship to the child, as
    long as she is also the child’s legal parent at the time of birth.
  • A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or
    after birth, when all other pertinent citizenship and naturalisation requirements are met.

It is important that this policy decision would only be applicable in jurisdictions where the surrogate mother is considered to be the legal mother of the child at the time of birth of the child. In India the Commissioning Couple are considered to be the legal parents of the child even at the time of the birth of the child. In India, the surrogate mother and the commissioning couple are not required to undergo any legal procedures in order to relinquish or gain parental rights over the child. Moreover, the name of the commissioning couple are found in the birth certificate of the child at time of birth of the child. That being the case, it would be highly improbable that this policy decision could be applicable for any surrogacy arrangements taking place in India. However, if the surrogacy agreement provides for parental rights in favour of the surrogate mother at time of birth, there could be a possible application of this policy change as far as India is concerned.

This apart, it would appear that a child born abroad and is genetically unrelated to the US commissioning couple would be able to obtain US citizenship.

surrogacy_maternity_leave

After the Kalaiselvi case decided by the Madras High Court, we have the Kerala High Court presented with a similar case this time.

“Whether an commissioning mother is entitled to maternity leave after the birth of the child?”

This is the question that comes before the Kerala High Court on 29/10/2014. Geetha, an employee of the Kerala Livestock Development Board had taken up a surrogacy arrangement as a result of which she had been blessed with a boy on June 18th 2014. When she had made an application for maternity leave with her employer, the same was refused stating that the rules prescribed does not make provision for a child born through surrogacy. The core basis for refusal of the maternity leave for Geetha seems to be fact that she is not the biological mother of the child (i.e.) she did not gestate the child.

As can be seen, the importance of maternity leave is being hugely undermined by the governmental corporations. Maternity break is the period when the mother and the child would be able to bond with love care and affection. State agencies should be more careful when rejecting an application for something relating to a basic human requirement to bond with a child.

The court transcripts are not available and I am not aware of the arguments that went forth in the case. I shall update of any further information that I may come across.

An individual Member of Parliament has taken initiative to introduce a bill for regulating surrogacy in the Lok Sabha, known as the house of commons or the lower house of the parliament. The Bill No. 61 of 2014 named THE SURROGACY (REGULATION) BILL, 2014 had been introduced in the Lok Sabha on 08/08/2014 as gathered from the Lok Sabha website. This Bill was introduced by Dr. Kirit Premjibhai Solanki, MP from Gujarat.

Pointers on The Surrogacy (Regulation) Bill, 2014:

  • Bill introduced by an individual member of parliament and is not government sponsored bill.
  • This Bill deals on with surrogacy arrangements alone and not with Assisted Reproductive Technology as such.
  • The Bill provides to allow commercial surrogacy arrangements for couples from abroad if they have an appointed guardian in India.
  • Bill does not discuss ART Banks, whereby surrogate mother and egg donors can be identified.
  • Bill provides for insurace for surrogate mother must be sponsored by the commissioning couple
  • Bill provides for surrogacy for gay couples, after same sex relations are allowed in India

Copy of the Bill is found here.

While the Government sponsored Assisted Reproductive Technology Bill is still with the legislative department, there is no actual date on when the Bill would be introduced by the Parliament. There is a strong message from various departments that the bill may actually be introduced in the winter session of the Parliament in 2014.

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I am coming across new reports silicon industry majors Apple and Facebook are paying their female employees to cryo-preserve their eggs. Cryo-preservation is a process whereby bio-material can be frozen and can be used at a later point of time. Apple and Facebook are indirectly encouraging their female employees to postpone their family plans, so that they would able to better concentrate on their work. Also it saves the companies of all the maternity benefits immediately.

Global studies show that the quality of the eggs goes down with advancing age. Several females have to turn to use an egg donor or a surrogate mother for enhancing the possibility of having a child. Most women who try to have family after the age of 35 experience problems to do so in the natural way.

I am learning that the Apple and Facebook are willing to afford USD $ 20,000 for their female employees to freeze their eggs for future use. I do not support this view of several reasons. Clearly, the companies are more interested in having their employees stay with them during their 20s and 30s, not deviating to family life. They are happy to provide the incentives to ensure that the employees do not take their maternity leave, or be a financial commitment in the rolls during that period.

The companies are actually encouraging their women employees to postpone having their family. Professionally successful women find themselves in a difficult position to have a family. Most would be required to postpone expanding their family, fearing less importance at the work-place or having to lose out on the professional growth. Now with this kind of an encouragement in place, most women would prefer to carry on with their well rewarding work.

The companies do not take into account the possible mental trauma that the female employees may go through if they are not able to achieve pregnancy in natural way. They would be required to resort to IVF treatments to help them have a child. The success rates in IVF, though has improved dramatically in the recent years is not 100%. That would mean that there is no 100% guarantee that the eggs that are cryo-preserved would actually result in having family. There is a huge risk of the eggs not resulting in a safe child and they might be required to use an egg donor.

Another issue is that the age gap between the child and the parents would be abnormal increase. That is another very worrying part of acting against the rule of nature. 

I sincerely hope other companies do nor follow this tradition. And I also sincerely hope that the employees are only take it something like an insurance and not an actual option to postpone their family.

baby selling child trafficking

The Bangalore Nandhi Layout Police had launched a case against one Mr. K T Gurumurthy on charges of child trafficking, and kidnap and sale of newborns based on a complaint by one of his clients. K T Gurumurthy is running Srushti Global Trust in Basaveshwarnagar, Bangalore.

Gurumurthy claims himself to be fertility specialist and embryologist. He had promised one of clients, Dhan Bosco to arrange a surrogate mother for Rs. 3,50,000 so that the couple could have a child genetically related to them. Dhan Bosco had provided his sperm sample in the year 2008. After about 7 months Gurumurthy informed the couple that a girl child is born to them. Gurumurthy did not justify the early birth of the child.

The child had later suffered some ailments. Depressed over the illness of the child, the wife of Dhan Bosco passed away. Dhan Bosco then took a DNA test which showed he is not genetically related to the child. It is then he learnt Gurumurthy had cheated him. Aggrieved by this, he approached the police authorities and charged with kidnap and trafficking of the new born for the purpose of sale, cheating, threatening and criminal intimidation.

Gurumurthy is currently facing another prosecution on charges of cheating childless couples, after promising them IVF treatment. The earlier was launched in January 2014. Gurumurthy is now under police custody for a week’s time.

This come right in the time when an Australian couple had abandoned a child born through surrogacy in India, while taking its twin.

 

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An Australian Couple have reportedly abandoned a child born through surrogacy in India, while taking one of the twins home. The revelation was made by Australian Chief Justice of the Family Court, Diana Bryant in a family law seminar in Australia this week.

The incident reportedly took place in 2012. An Australian Couple had taken up a surrogacy arrangement in India and it had resulted in the birth of twin children. The Australian Couple had chosen to take only one child born through the surrogacy arrangement, while deciding to abandon the other twin. The Officials at the Australian Consulate had knowledge of this decisions and have reportedly tried persuading the couple against it. Also, an Australian MP is said to have pressured the Australian High Commission to allow the Couple to take only the baby of the couple’s choice. The couple had already one child before the surrogacy arrangement, and they wanted only one child of the opposite sex. It is not revealed which gender the couple had chosen. Also, another person claiming to be friend of the Australian Couple seems to have taken custody of the child, while it is not clear if the claim is true and if there was any commercial interest.

This shocking news follows the Thailand Baby Gammy news, where another Australian Couple had taken up surrogacy in Thailand and had deserted one of the twin children, as the child was affected by down-syndrome.

Abandonment of a child is an offence in India

Abandonment of a child is punishable under Indian Law under Section 317 of the Indian Penal Code, 1860. The relevant provision is extracted hereunder:

317. Exposure and abandonment of child under twelve years, by parent or person having care of it.—Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

If the facts as provided are true, the acts of abandonment of the child by the Commissioning Couple clearly fall within the above provision of law, which warrants 7 years of imprisonment. The Australian Commissioning Couple have initiated the surrogacy arrangement, but have chosen to take custody of only one child and abandon the other. The mere act of abandoning the child is clearly an offence.

Australian High Commission must have acted

The Australian High Commission is said to have full knowledge of the fact that the couple are trying to abandon one of the twins born through surrogacy. As is prudent to any logical reasoning, the Australian High Commission must have informed the Indian Authorities about this issue and must have taken steps to have registered a case with the local police about the act, rather than merely trying to orally persuade the couple.

I am not sure which State in Australia the couple reside. But almost every state law in Australia would have a provision which makes the act of abandoning a child an offence. The couple would be liable to prosecution in Australia also.

Welfare of child undermined

There is no doubt that the welfare of the children has been undermined. It is unbelievable that the officials who had knowledge of the information have failed to inform the Indian or Australian Authorities. Abandonment of children and possible trafficking of children is a very serious allegation. Reckless, but intentional, decision by the commissioning parents clearly makes them unfit to be good parents for a child.

Need for International Intervention in Cross Border Surrogacy Arrangements

In every surrogacy arrangement, a new life is brought into being only on the instance of a couple who wish to have a family. The act of the Australian Couples, be it Baby Gammy or the Indian Case, is even unimaginable and inhuman. The Hauge Conference is exploring the possibility of having a convention on international surrogacy arrangement. Such an effort is most required to deal these scenarios with iron hands. The international community must come forward to ensure that this act is never repeated.

The BBC Tamil Interview on Australian Couple who have deserted a child born through surrogacy in India:

One interesting question that was posed was whether the surrogate mother can compel the couple to take the child in case they refuse. I forgot to mention Section 317 of the Indian Penal Code, 1860. However, I am covering it in the next blog post.

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News reports are out hinting that the Maharashtra Medical Council is planning to come up guidelines for surrogacy arrangements. These guidelines shall have an impact on all surrogacy arrangements taking place within Maharashtra. Maharashtra Medical Council is a Statutory Body, established by the law of the State i.e. Maharashtra Medical Council Act 1965. Mumbai, the capital city of State of Maharashtra accounts for a large chunk of all surrogacies in India. There has always been much criticism that Mumbai clinics had made surrogacy very commercial. Many research workers and NGOs had earlier pointed to crude way of selection of surrogate mothers from slums in Mumbai, and the possibility of being exploitation.

Earlier Cases of violation from Mumbai

There have been blatant cases of violation from Mumbai. In 2012, A popular doctor known for international surrogacy arrangements is now facing charges for repeated using a very young girl for egg donation in the year 2012. The charges state that she had been donating eggs at the same hospital even when she was a minor. The girl had died after her last egg donation. She was aged 18 years at the time of the death. The doctor has now obtained a pre-arrest bail before a sessions court. Her employer is also facing charges of abduction along with the doctor.

In April 2014, several clinics in Mumbai had been seen flouting the Ministry of External Affairs rules by providing medical services for foreign commissioning couples, who have not obtained medical surrogacy visa. The Surrogacy Guidelines by the Maharashtra Medical Council may curtail any possible conflicts with regard to surrogacy arrangements.

Surrogacy Guidelines by Maharashtra Medical Council Laudable

This is the first time that a State Government in India has come up trying to regulate the surrogacy arrangements in India. State Governments had done little with regard to surrogacy arrangements or evern with regard to IVF centre. Earlier, the Tamil Nadu Government Directorate of Medical Services had required that all clinics providing IVF services to be registered with them. There is no clear number as to how many clinics had acually registered with them.

This move of the Maharashtra Medical Council is certainly laudable. Medical Councils and State governments need to take an active role that the IVF clinics stick to their core medical services, and not be involved with surrogacy arrangments as an agency.

Surrogacy Guidelines not available in the official website of the Maharashtra Medical Council

The surrogacy guidelines drafted by the Maharashtra Medical Council is not available at their official website. I have not had a chance to go through them yet. I shall keep the blog updated once I read through the Guidelines.

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I am coming across news-reports telling me that the Winter Session of the Parliament might actually be passing the Assisted Reproductive Technology Bill, 2013 (ART Bill). The Assisted Reproductive Technology Bill is pending for more than 4 years now. The ART Bill has undergone atleast two revisions, but there still seemed several loopholes the last time I read through it. I did not get the idea that I was reading the final draft of the ART Bill and several changes to Bill might be appropriate. I shall certainly try to make a blog-post on the possible improvements to the Bill that would be more practical for the given scenario.

To be frank, I am not convinced of the news report. There have been several instances in the past where the newspapers reported that the Bill was going to be introduced in the Indian Parliament for debate, but nothing actually came out of it.

If India is passing the ART Bill, it could be changing the infertility scenario globally.

Yes, I mean every word of it. After India restricted commercial surrogacy for married couples only, I came across several couples who were not able to afford commercial surrogacy in the US and the same time, did not want to look at a different destination. India had created a niche for itself by being safe and secure as far as commerical surrogacy was concerned. When India disallowed commercial surrogacy for gay couples, it was indeed a big blow for several of them. What I am trying to point out is, Indian Fertility Laws mattered and matters even more now globally.

If India is now coming up with a special legislation, it will matter to a lot of infertile couple around the globe. The fertility laws in India would attract a lot of attention and would have an impact on the way have their family.

India may be the first country to allow commercial surrogacy by way of a legislation

Barring Isreal, I am not sure which other nation has actually passed a law that allows commercial surrogacy. In most nations where legislations allowing surrogacy has been passed, commercial surrogacy has been made illegal. In many conservative states surrogacy arrangements by themselves are considered to be a criminal offence, irrespective of whether it is altruistic or commercial surrogacy. Surrogacy has been subject of political and social criticism in many nations and the Governments have always had a tough time with the laws pertaining to surrogacy.

Given this scenario, if india passes the Assisted Reproductive Technology Bill, India may be first country to actually allow commercial surrogacy arrangements by way of a legislation.

The following issues may be covered in the Assisted Reproductive Technology Bill

  • Age limits for the surrogate mothers
  • Minimum compensation payable to the surrogate mothers in surrogacy arrangements
  • Eligibility criterion for International Couples to take up surrogacy arrangments in India

I hear that the Assisted Reproductive Technology (Regulation) Bill, 2013, has been cleared after rounds of discussions with various ministries and other stakeholders and will be presented before the Union Cabinet soon. Secretary (Health Research) VM Katoch is said to have spoken at a national conference on surrogacy of the same.

I hope that the wait for the Assisted Reproductive Technology Bill is worth it and that the law brings in regulation for the protection of the surrogate mother and the commissioning couples.