Australian 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 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.

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.