Sometime in September 2014, Thailand’s newly formed military government had vowed to ban commercial surrogacy after facing a series of issues with international commercial surrogacy arrangements. (http://blog.indiansurrogacylaw.com/thailand-to-ban-surrogacy/)

The first came the Gammy Case where the intended parents from Australia had abandoned one of the twins born through surrogacy as the child had down-syndrome. Then came the case of a Japanese man who had about 16 children through surrogacy. The Thailand military rule had then come up with a crack down against the illegal surrogacy clinics which had been performing commercial surrogacy illegally. Thailand Kingdom then announced that commercial surrogacy was never legal in Thailand and all surrogacy arrangements in Thailand were illegal. It can be recalled that several of the intended parents who had children through surrogacy had difficulties in taking back the child born surrogacy.

Now the Thailand Parliament had passed a legislation banning commercial surrogacy, making it illegal for foreign couples to take up a surrogacy arrangement with a Thai surrogate mother. This ban is applicable for all foreign nationals and same-sex couples.

It is informed that only altruistic surrogacy would be allowed, and that too only for Thai married heterosexual couples. The surrogate mother must be atleast 25 years of age. It is informed that the surrogate mother must be only a relative of the husband or the wife of the intended parents. Also, advertisement or promotion of surrogacy services is now banned.

After India banned commercial surrogacy for same-sex couples through VISA regulation, Thailand was the most sought after for commercial surrogacy. With the ban of the commercial surrogacy in Thailand, the number of nations that allow commercial surrogacy is foremost limited to certain states of USA and certain less known countries like Ukraine.

The Kerala High Court had decided a case pertaining to the maternity benefits of an intended mother who had a child through a surrogacy arrangement. The applicant in the case, Mrs. Geetha is an employee with the The Kerala Livestock Development Board, a Government of Kerala undertaking.

The brief facts are that the applicant and her husband were compelled to take up a surrogacy arrangement to further their family as they remained childless for more than 20 years. The couple entered into an agreement with a clinic in Hyderabad to take up a surrogacy arrangement. Following this, the surrogate mother delivered a baby on 18/06/2014 and the custody of the child was handed over to the intended mother immediately after the birth.

The intended mother had made an application for leave from work to her employer as part of exercising her maternity benefits. The employer, Kerala Livestock Development Board had refused the application on the ground that maternity benefits are available only for birth under normal circumstances and had recommended that the intended mother goes on leave with loss of pay. Aggrieved over this order, the intended mother approached the High Court of Kerala by way of writ petition. She has urged the Kerala High Court to allow the writ petition, with a direction to her employer to provide all maternity benefits to her, as if she had undergone the process of pregnancy and had been delivered of a baby.

The earlier post on this issue is found here – http://blog.indiansurrogacylaw.com/maternity-leave-surrogacy-high-court/

The main contention of the intended mother was  that particular arrangement the petitioner had, the surrogate mother only underwent the gestational process, without much of emotional quotient, as the petitioner and her husband remained the genetic parents of the child born through the surrogacy arrangement. By referring to various international treaties and conventions, the intended mother contends that, to most of the international treaties, India is a signatory and that it is obligatory for the country to honour those commitments, without taking shelter under statute law.

The case was decided by HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU. The decision went in favour of the intended mother, but distinguished the decision of the Madras High Court in the case of the Kalaiselvi vs. Port Trust.

The Judge posed the following questions to arrive at a decision:

i. Whether the petitioner is entitled to maternity leave, having had a child through the process of surrogacy, she herself being the genetic or biological mother?
ii. Whether, in the face of a particular legislative field having been occupied by an extant domestic enactment, the International Law conventions and treaty obligations can be enforced through Municipal Courts?
iii. Whether the dichotomy in maternity is admissible, so that pre-natal and post-natal periods can be viewed distinctly in relation to two different women?

First Issue:. Whether the petitioner is entitled to maternity leave, having had a child through the process of surrogacy, she herself being the genetic or biological mother?

The Court held that the Maternity Benefit Act focuses on conception, gestation and delivery of a child and not for bringing up the child. The Court reasoned that if the Maternity Benefits were only for the upbringing of a new-born, a leave of a few days and compensation of a few thousand rupees are woefully inadequate to serve the said purposes. The social welfare legislation also provided for the breaks for feeding of the child, which would indicate the importance of the mother’s presence with the child. Merely because the genetic/intended mother had not carried the child, it cannot be said that she cannot be entitled to Maternity Benefits.

Second issue: Whether, in the face of a particular legislative field having been occupied by an extant domestic enactment, the International Law conventions and treaty obligations can be enforced through Municipal Courts? 

The importance of this issue was that India was a signatory to International Conventions like Convention No.183 of International Labour Organisation and the Universal Declaration of Human Rights. The International Law requires that unless there is a local/domestic law to the contrary, the international laws to which the country is a signatory must be enforced. The Judge went forward to extract the provisions from the International Conventions that ensured every child the same social protection. Since the Assisted Reproductive Technology (Regulation) Bill had not been enacted and is still in the drafting stage, the International Conventions can be relied to protect the rights of a new-born child and that of the genetic mother.
The third issue: Whether the dichotomy in maternity is admissible, so that pre-natal and post-natal periods can be viewed distinctly in relation to two different women?

The essence of this issue is that medical advancement has essentially created a divide between who carries the child and who is the legal parent of the child and who takes care of the care. In the present case, the intended mother wants every benefit available for a mother under normal circumstances, who had conceived, gestated and borne the child. The maternity benefits provides for the time for a mother who had delivered a child to recoup herself due to the physical strain she had undergone during the pre-natal period. The maternity benefits also provided for the time the mother is required to care for the child, post-birth. The Court ruled that both of these aspects have to be looked into distinctly.

The surrogate mother had carried the child, genetically unrelated to her. The child had been handed over the genetic mother, who takes care of the child immediately after the birth of the child. The genetic mother shall be entitled to all maternity benefits that she would be able to enjoy during the post-natal stage.

Admittedly, the petitioner has not undergone any pre-natal phase, which in fact was undergone by the surrogate mother, whose rights are not in issue before this Court. From day one, after the delivery, the petitioner is required to be treated as the mother with a newborn baby. Thus, without discriminating, it can be held that the petitioner is entitled to all the benefits that accrue to an employee after the delivery, as have been provided under the Act or the Staff Rules. Nothing more; nothing less, for the petitioner cannot compel the employer to place her on a higher pedestal than a natural mother could have been placed, after undergoing the pregnancy.

Thus, to conclude, this Court declares that there ought not to be any discrimination of a woman as far as the maternity benefits are concerned only on the ground that she has obtained the baby through surrogacy. It is further made clear that, keeping in view the dichotomy of maternity or motherhood, the petitioner is entitled to all the benefits an employee could have on post-delivery, sans the leave involving the health of the mother after the delivery. In other words, the child specific statutory benefits, if any, can, and ought to, be extended to the petitioner.

It is important to note that the Judge had distinguished from the Kalaiselvi case decided from the Madras High Court. In the Kalaiselvi case, Justice K Chandru had paid more importance to the mother-child bonding to the post-natal period. However, in this decision, importance is given to the fact that the dichotomy in maternity. It can be clearly seen that the law to assisted reproduction is growing.

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.