Thailand Bans surrogacy

Thailand Bans surrogacy

Thailand has given the official end to commercial surrogacy by bringing into effect the law which was passed in February this year. Thailand was a popular option for international surrogacy with much less regulation. Thailand did not have a law regulating surrogacy and the surrogate mothers were available in abundance. With no regulatory body in place, the industry was flourishing. Thailand’s surrogacy also surged forward when India disallowed surrogacy for homosexual couples. India had introduced a new category of visa called the “medical visa for surrogacy” which required that the intended parents to be a married heterosexual couple married at least for a period of two years.

Thailand’s decision to ban commercial surrogacy came after the controversial baby Gammy case. An Australian couple had deserted one of the twins born through surrogacy after they came to know that the child had down-syndrome. With this case widely discussed in the international media, the Thai Authorities started crackdown operations on surrogacy industry. Another case was exposed where a Japanese single man had fathered about 16 children through surrogacy in Thailand. With these cases in hand, the newly formed military government in Thailand had brought out strict reforms to ban commercial surrogacy, also stating that surrogacy was never legal in Thailand.

Thailand has now imposed restrictions similar to what was introduced in India. The present law requires that those wishing to take up surrogacy in Thailand must be a couple, a man and a woman legally married for at least three years with atleast one of them holding Thai nationality. It also requires that the surrogate mother must have her own children, and must take up the surrogacy with the consent of her husband. Ideally the surrogate mother must be a sibling of the couple. If the surrogate is not a sibling to the intended parents, then there are also few restrictions on who can be the surrogate.

The new law prohibits commercial surrogacy for foreign clients. Offences under the law are punishable by up to 10 years in prison and a fine of up to 200,000 baht (USD 6,200).

baby-silhouette-hiThe Australian Couple who had deserted the child born through surrogacy in Delhi in 2012 had come out with the theory that the child was not abandoned or deserted, but the child had been given in adoption to a close family friend of theirs. The adoption theory is highly improbable.

  • Child did not have any Citizenship: The Australian Couple refused to apply for Australian Citizenship for the child born through surrogacy and the Australian officials’ version is that they were unable to help the child as the child was not an Australian citizen. They would be able to grant citizenship for the child only if an application for grant of citizenship was made. Either way, the child was not accorded Australian Citizenship.
  • The child does not qualify for an Indian citizenship as the child is not genetically related to a Indian national. Further, the child had no link/relation with an Indian citizen, who is in a position to apply for Indian Citizenship for the child.
  • In India, unlike the United State of America or several other nations, the child is not granted citizenship merely because of birth within the Indian Borders. The child must a parent holding an Indian Nationality.
  • For all practical purposes, the child was stateless at the time of birth. Or atleast the child did not hold an Indian Citizenship or Australian Citizenship during the time of adoption.
  • If the child has to be adopted as per Indian laws, the child must be a citizen of India. The adoption formalities cannot be made for adoption of foreign national in India.
  • If such an international adoption has in fact taken place, then it must be governed by the International treaties on adoption such as the Hague Conventions. It can be presumed that the adoption formalities must in fact take a much longer time than the time it had taken. Even in that case, how can those treaties be applicable to a child which does not hold Indian or Australian Nationality.

The theory of adopting this child is in fact highly questionable and improbable. International Media has taken keen interest on the issue. ABC even ran a documentary on trying to locate the child. There has been constant fear that the case of child trafficking as money could have changed hands. Indian media has not been giving enough importance for the issue for reasons best known to them.

The Indian Government can file against the Australian Couple who had left behind the child in India, while taking the twin under Section 317 of the Indian Penal Code:

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.
The Indian Government has shown little interest in the possible case of child trafficking and has failed to protect the interest of the child. India must launch action against the couple who had abandoned the child in India.
Netherlands clarifies on surrogacy

The Dutch Government has clarified its stand on surrogacy with a publication of information pertaining to surrogacy on its official website – http://www.government.nl/issues/surrogate-mothers. Netherlands is much known for having a tolerant policy towards several issues including drugs, prostitution and euthanasia. In 2001 Netherlands became the first country to legalize same-sex marriage. But Netherlands is not adopting a similar liberal view towards surrogacy.

In 2014 the Netherlands government had set-up a commission to inquire the extent and impact of surrogacy arrangements, and to also decide if the country requires a special legislation on surrogacy. Presently Netherlands does not have a specific legislation on surrogacy.

Like in several European Nations, altruistic surrogacy is permitted in Netherlands. The childless couple can look for a surrogate mother from their friends circle or any of their relatives, but cannot advertise such requirement. Also the surrogate mother may be compensated for the expenses. It is understandably clear that the surrogate mother cannot profit from the surrogacy arrangement.

Use of egg donor prohibited
As per the 1998 medical guidelines that has published the embryo that be transferred to a surrogate mother must be genetically related to the intended parents only. That would mean that egg donors cannot be used for a surrogacy arrangement.

Netherlands would not issue document for obtaining medical surrogacy
Netherlands made it clear that no letter would be provided by the Dutch Embassy that would enable a Dutch National to take up surrogacy in India which is prerequisite for obtaining a Medical Surrogacy Visa for taking up surrogacy in India. As per the Dutch laws, the surrogate mother being the birth mother of the child, is regarded to be legal mother of the child. If the surrogate mother is married, the surrogate mother’s husband is regarded to be the legal father of the child. So, if an application is made to Dutch Consulate for citizenship for child born through surrogacy, the same would be rejected. For this reason, request for letter supporting the medical surrogacy visa of a Dutch National would be categorically denied by the Dutch Consulate.

Transfer of parental responsibility to the intended parents
The information released by the Dutch Government also clearly described how the parental responsibilities can be transferred from surrogate mother to  intended parents after the birth of the child. The surrogate mother has to provide declarations that she is willing to give up the child and she had received any payment for the same.

With the consent of the Child Protection Board, the intended parents can take over the custody of the child. The Board shall take into consideration if the intended parents have any criminal record, their capacity as parents and may also include a DNA test.

The intended parents can then move the court to obtain an order to be appointed as a guardian of the child. After a period of one year, the intended parents can move the court again for obtaining an order legalizing the adoption of the child by the intended parents.

We have obtained parental orders for single parents from Netherlands taking up surrogacy in India few years back. The orders were India’s first parental orders decided by an Indian Court. The legal position in Netherlands was in a much nascent stage at that point of time. I would try to peruse the legal position now and try to make a write-up on the same.

Monetary Bond Indian Surrogacy

India plans to introduce monetary bond for initiating surrogacy by foreign nationals

News is out that the Indian Government is now planning to implement a monetary bond for foreigners wishing to take up surrogacy in India, whereby the couple have to deposit a sum of money  towards monetary bond prior to taking up of surrogacy arrangement in India. The sum of money would be returned to the couple at the time of taking of custody of the children born through the surrogacy arrangement. This is one of amendments that is likely to be introduced into the Assisted Reproductive Technologies (Regulation) Bill, 2013.

The exact details of how the government plans to implement this monetary bond policy is unclear, although it seems certain that if such a bond is introduced, the couple would be required to deposit the monies for the bond in the name of the unborn child prior to issuance of the medical surrogacy visa. The monetary bond must be returned to the couple after the child is born and custody is taken by the couple. The money is to be a security deposit for the welfare of the child, in case the intended parents do not take custody of the child after the birth.

The Indian Government had found itself in the middle of huge controversy when an Australian Judge had provided information that an Australian Couple had abandoned a child born out of a surrogacy arrangement in India and the Australian Embassy officials had knowledge about the same. The boy child was said to have been given in adoption to another couple and later it was confirmed that money could have changed hands making out a case of child trafficing. Following this controversy, the Indian Ministry of Home Affairs refused to grant medical surrogacy visa for Australian Nationals who desired to take up surrogacy in India. I am not if this rule has been fully relaxed yet. The Government has been anxiously introducing safeguards to ensure that surrogacy in India is restricted to the safest extent possible. One of the measures taken by the Indian Government was to not grant medical surrogacy visa for single parents and homosexual couples.

Quantum of the Surrogacy Monetary Bond

This is the first time that a Country come out with a plan to introduce this sort of monetary bond policy for entering into a surrogacy arrangement. If the monetary bond must have a practical purpose, the cost of the monetary bond must be extremely steep as it intends to provide for the lifetime care, support and maintenance of a child that may be born though a surrogacy arrangement. If the sum is low, then the child cannot be afforded the care that is expected. It would be interesting to see how this amount is arrived at.

In my personal opinion, no sum of money can actually account for the loss of good parents to the child. The child is brought into the world only by the desire of the intended parents, and if the child is abandoned by them it really does not make any logical sense. It is would be highly ineffective to merely have a deposit of money in the name of an unborn child without means to ensure that the couple actually take the custody of the child.

Also if the bond amount is higher than the cost of surrogacy itself, the intended parents might not be able to accumulate funds for the bond and the surrogacy arrangement as well. Having a child and a family is a basic need for any species, not only human beings. Intended Parents from all over the world who take up surrogacy are not essentially rich, but come all the way to India as it is the only option in their hand given the monetary considerations. I am not sure how many couples would be able to accumulate the huge sum for the monetary bond and for the surrogacy arrangement.

Abandoning a child is an offence under Indian Penal Code

Abandoning of a child in India is already an offence under the Indian Penal Code under Section 317. You can read more about it here. The Indian Government has not initiated any criminal action against the Australian Couple who had abandoned the child. It is ridiculous that the Indian Government does not wish to take the abandonment done by the Australian Couple seriously, but is only trying to impose more restrictions on future surrogacy arrangements.

The Indian Government must bring in stricter laws making the abandonment of a child born through surrogacy a much serious offence and must take inter-country action for enforcing the laws rather than imposing only a monetary bond, which would hinder several couples to take up surrogacy in India.

julie-bishopAustralian Foreign Minister Julie Bishop who is currently in India has made a statement to the Australian Media that the Consular Officials in Delhi who handled the case of an Australian Couple who left behind one of the twins born through surrogacy in India, had “acted professionally”. The context of the statement is unclear, though it can presumed that the statement is only a press-release. India-Australia have not opened a dialogue on this issue yet.

The stand of the Australian Foreign Minister is that the application for Australian Citizenship was received for only one child and the twin had no application for Australian Citizenship. The role of Australian Embassy, according to the Australian Government, is “limited” as the child was not a citizen of Australia.

The Australian Foreign Minister had stated to the Australian Broadcasting Corporation that the other child left in India was “a matter for the Indian authorities as it always was”.

The response by the Australian Government/Foreign Minister can be rather termed insensitive. The identity of the couple has not been disclosed and the location, status and welfare of the child is unclear. The Australian High Commission had in fact wired to the Australian Government in Canberra that the adoptive parents are not clear friends of the Australian Citizens, but are not known only through a mutual friend.

Nothing to show that the Australian Consulate informed the Indian Authorities.

Although Australia claims that the child left behind in India is only a concern of the Indian Authorities, there is nothing to show that the Australian Consulate had informed any Indian Authority about the child being left behind in India. The alleged “adoption” cannot have taken place unless the child is actually a citizen of India. The child cannot be accorded an Indian citizenship as the child was genetically unrelated to an Indian Legal Parent.

Interest of the Child foremost importance

The primary importance must be given to the interest of the child. The Australian Government must ensure that the identity of the couple is disclosed and that the child is presently in safe hands. When the Australian Government refuses to release these information, the Indian Authorities have nil information to act upon.

There is a news update from the Australian Broadcasting Corporation with regard to the abandonment of the one of the twins born through surrogacy. The ABC (Australian Broadcasting Corporation) has access to documents from the Australian High Commission in New Delhi pertaining to the one of the twins which was disowned by an Australian Couple. To know about the full facts read here.

The documents show that the Australian Consular officials had full knowledge of the case, and chose not to act against the couple. The couple had approached the Australian High Commission In New Delhi applying for citizenship for one of the children born through surrogacy. The couple have reportedly told the embassy staff that they are going to leave the boy twin in India as they wanted only the sister to complete their family and that they could not afford raising another kid. The Couple already had a boy and wanted a girl child to complete their family.

The documents show that the Australian couple misled by telling the Consular Officials that they were looking to give the boy child in adoption to a Childless couple, who are close family friends of the Australian Parent. The Consular officials later came to know that the adopting parents were actually not close family friends as claimed by the Australian Couple.

The couple had been repeatedly informed by the Australian Consular Officials in New Delhi that the boy may become stateless if the parents do not apply for Australian Citizenship for the boy by the parents. The boy was fully qualified for an Australian Citizenship, but was not granted one, as the parents chose not to apply for the same. The Australian Consulate chose not to act on the case as the boy was not an Australian Citizen.

The following are not clear:

  • The citizenship of the person who took the custody of the child
  • How can private adoption take place in India when the child does not have an Indian Citizenship?
  • Whether any monies exchanged hands as part of this “adoption”?
  • Who are these “couple” and why is the identity of the couple being kept a secret?
  • When abandonment of a child is an offence in India under Section 317 of the Penal Code, why has not filed a case against the couple yet?

China_surrogacyXinhua News Agency, the official press agency of the People’s Republic of China has come out with a press release stating that the surrogacy industry in China will be acted upon. It is claimed to be a nine-month inter-departmental action on identifying, prosecuting and punishing medical professionals and intermediary agencies that are involved in surrogacy arrangements. It is also claimed that advertisements over the media, including the internet, would also be removed and acted upon.

Chinese Government had always claimed that surrogacy was illegal in Mainland China. It has been reported in the International news media that several Chinese couples had taken up surrogacy arrangements within China. This was considered that underground operations, which were clearly illegal but the presence of which was very obvious.

I had interacted with a former client of mine few months back who had taken up a surrogacy arrangement in China. He said that surrogacy arrangements were fairly open although illegal.

I had earlier reported about Peter Lee Ka-kit being investigated by the Police for taking up surrogacy arrangement in US in 2010. He had Triplets out of the said surrogacy arrangement was reported probed by the Chinese Police for taking up of surrogacy arrangement, even though outside the country.

Chinese Couple taking up international surrogacy arrangements

It is unclear whether Chinese couple can continue taking up of surrogacy arrangement outside China. Several wealthy Chinese couple had reported taken surrogacy arrangements in the US, thereby enabling the children born through arrangement to take up Citizenship. Several Chinese couples had also taken up surrogacy arrangement in Thailand, when it was permitted. It is now unclear if the Chinese couples would be allowed to take up surrogacy arrangement out China.

There are always new ways to do things. And, this is exactly one of those.

o-LAUREN-MARCHANT-570

Photo from here- http://www.gofundme.com/phyrd4  

A Couple from United Kingdom have inspired the spirit of many childless couples wishing to take up a surrogacy arrangement with their idea to crowdsourcing a surrogacy arrangement for having their second child. Their fundraising page at http://www.gofundme.com/phyrd4 puts their story as below:

After a life saving hysterectomy for Lauren, Lauren & Ben (childhood sweethearts & newlyweds) cannot get pregnant the conventional way.
Lauren is mum and Ben step daddy to Logan (3) but are desperate to have a child together so are hoping to raise enough money to be able to go through surrogacy. At a massive £20,000 they are struggling with the last hurdle
With savings already and Ben volunteering to go away with work (british army), they are hoping to raise the extra money to fulfill their dreams as a couple, to have Bens first biological child.
The NHS are non receptive, as Lauren has logan, but for Ben they wish there was more that could be done to help.
Thank You for your time,and any donations possible.

Lauren & Ben

A child is a basic need of any family and many people are unable to have a child due to their reproductive disability. The advancement of science has made this a possibility, but what stands in the way is the money. Crowdsourcing has changed the lives of many, in many different ways. I sincerely hope crowdsourcing could this family too.

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.