surrogacy lawyer india

Surrogacy in India

Web-blog of Indian Surrogacy Law Centre

Jan Balaz case

Feb 25

Posted by Hari Ramasubramanian in Uncategorized | No Comments

The Supreme Court of India is unrelentingly making attempts to have the twins born through surrogacy to be sent along with the German Couple to their homeland. Understanding the feeble chances of granting Indian Citizenship to the children, the Indian government tried negotiating with the German Authorities to grant nationality for the children as a ‘special case.’ However, the German Authorities held a firm ‘no’ as surrogacy was not permitted in Germany.

The Indian Government had agreed that the Central Adoption Resource Agency shall relax its restriction on children born through surrogacy and shall try for the adoption of the children by the intended parents. The Supreme Court responded by directing the government to file an affidavit expressing its willingness to relax the regulation for this purpose. The case is next posted to March 16th 2010.

The impact of the proposed decision of the Apex Court is certainly alarming. The Supreme Court of India is on the verge of ruling that the children of Jan Balaz (the German) have to be adopted from the surrogate mother. This would have an indirectly effect the names of the intended parents on the birth certificate. Once it is ruled that the surrogate mother has to give in adoption, it clearly means that the surrogate mother is the legal mother of the child and that their name will figure on the birth certificate. This would again create confusion in the law of international surrogacy where in the absence of laws in India, the Supreme Court is holding the surrogate mother to be the legal mother of the child. This of course is not in accordance with the surrogacy agreement which the couple of entered with the surrogate mother and also with the ICMR guidelines which clearly states that the name of the Intended Parents shall be in the birth certificate. It has to be noted at this instance that the Birth Certificate in this case carries the name of the surrogate mother and Mr. Jan Balaz, the German National.

The Supreme Court of India has not been briefed on the other couples who have taken up surrogacy in India with the belief that the birth certificate would be issued in the name of intended parents. This decision shall have an impact on all those cases where intended parents are already pregnant with the surrogate mothers with a premise that the birth certificate would be issued in their name. A representation to the Supreme Court on this count is imminent.

Tags: , , , , , , , ,

Queensland decriminalizes Altruistic Surrogacy

Feb 20

Posted by Hari Ramasubramanian in Uncategorized | No Comments

Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.

Some of the observations of the Family (Surrogacy) Act 2009 -

  1. Commercial surrogacy arrangement  continues to remain illegal and is considered an offence.
  2. The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
  3. The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
  4. The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
  5. However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
  6. There is no legal requirement for the intended parents to have a genetic connection with the child.
  7. The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
  8. Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
  9. The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
  10. The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
  11. Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
  12. Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
  13. The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.

Tags: , , ,

Michigan couple lose their child to surrogate mother

Feb 4

Posted by Hari Ramasubramanian in Uncategorized | No Comments

Amy Kehoe and Scott – a couple from Michigan were trying for a child. Amy underwent miscarriage thrice and was medically advised surrogacy. The couple had found a surrogate mother named Shelly Baker from Detroit. Shelly Baker had four children and had already been a surrogate mother twice. The couple entered into a surrogacy agreement with Shelly Baker. Shelly Baker had then become pregnant carrying the child of the couple.

On July 28 2008 Shelly gave birth to a boy and a girl. After a few days Amy brought the twins Ethan and Bridget home. On August 21st Amy and Scott received the notice from Shelly that the couple must give up the babies in about two weeks. Amy had also received intimation from her attorney that Shelly was going to revoke her adoption. Apparently Shelly has accused Amy of not disclosing information regarding a drug possession incident the latter was charged for years ago and that she was seeing a psychiatrist for anxiety disorder. But Amy claims that Shelly was actually acquainted of the fact that Amy was seeing a psychiatrist.

Unfortunately the laws in Michigan are wary since it is one of the five states that do not recognize surrogacy contracts and hence subsequently making them unenforceable. It is such that irrespective of the intended parent’s genetic relation with the child, the biological mother giving birth to the child would be considered the legal mother. Because of the surrogacy laws in Michigan, Shelly had the final say and on September 3rd the couple were forced to return the babies to Shelly.

These short facts raises serious concerns in choosing to take up surrogacy in states such as Michigan where neither is allowed nor banned. Surrogacy agreements are not enforceable in such states. Surrogacy in India is lot better where the legal complications are far less. In fact there is a nil history of reported case of the surrogate mother claiming the child.

Tags: , , , , , , , , ,

Indiana court to decide in vitro baby’s legal mother

Jan 30

Posted by Hari Ramasubramanian in Uncategorized | No Comments

The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy.

A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using a legally wedded couple’s gametes. The child was carried by the wife’s sister. On birth of the child, the name of the mother was left vacant and only the name of the father was filled. The Couple applied to the Indiana Court for a declaration that the wife should be declared to be legal mother of the child and that her name should occupy the mother status in the birth certificate. The surrogate mother too filed an affidavit in support of their petition. But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.” Attorney Steven Litz applied the Court of Appeals to intervene, challenging the constitutionality of Indiana’s paternity law because it allows men — but not women — to establish legal parenthood. Such similar stand was taken in Arizona and Maryland Court where the similar paternity laws in surrogacy situations were inadequate to deal with reproductive technology. The Judges clearly did not want to delve into constitutionality aspects and were looking for a simpler solution for the whole problem. The matter is still pending.

The same question is arising in every country where surrogacy is permitted. Who is the legal mother of the child? The similar facts of the Jan Balaz Case was purpose of Nationality/Citizen. So is similar the British Nationals case which was handled by me. The solution for this legal problem can be arrived only with a comprehensive legislation dealing with the intricate issues of surrogacy. The much larger issue of international surrogacy calls for a international treaty concerning surrogacy.

Tags: , , , , ,

US Consulate denies American citizenship to child

Jan 26

Posted by Hari Ramasubramanian in Uncategorized | No Comments

I learn from a news report, Times of India, Chennai Edition dated January  25th 2010 of a strange case involving an American Couple where the American Consulate had denied citizenship to a child which was not genetically related to the Intended Mother. The intended mother reportedly had taken recourse to adoption for taking her child to the US. I am not completely aware of the facts of the case and the article also does not disclose the fine facts of the issue. However, I have mailed the author of the article, Ms./Mrs. Jaya Menon asking for more information on her article. I await the reply for the same.

The article brings me quite an amount of curiosity as to what difference this case had made as I am through informed sources that the processing of the Passport applications of Children born through surrogacy is a regular affair at Bombay and the Hyderabad Consulate. This case to be singled out certainly is very curious.

The link to the article is found here.

Tags: , , , , , , , , , ,

Parliament soon to enact Surrogacy Law

Jan 21

Posted by Hari Ramasubramanian in Uncategorized | No Comments

The Solicitor General of India, Mr. Gopal Subramanian had informed the Supreme Court that the Government is presently considering the legal and moral aspects of surrogacy in India, and the law on surrogacy is expected soon. The German couple is left with the only option of adopting the twins, so that they could be taken to Germany, where surrogacy is an offence but international adoptions are allowed. The couple’s lawyer Nageswara Rao said inter-country adoption was cumbersome and time-consuming and it would be another five-six months before the couple could take the children home legally. The Supreme Court reminded the Government of India that the children of Mr. Jan Balaz are already in India for  almost two years now and that the Government needs to act speedy with regard to children’s case.  Mr. Gopal Subramanian also informed the court that he had sent a letter to the Union of India over the issue and that he expects a speedy returns for the same.

Tags: , , , , , , , , ,

Updates on Jan Balaz Case

Jan 5

Posted by Hari Ramasubramanian in Uncategorized | No Comments

Mr. Jan Balaz, the petitioner in the case pending before the Supreme Court had submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities.  The case which is fast improving might soon be a happy ending.

Tags: , , , ,

The Telegraph writes on Indian Surrogacy Law Centre

Dec 22

Posted by Hari Ramasubramanian in Uncategorized | No Comments

The Telegraph

The Telegraph had written an article on surrogacy recently making reference to the work done by Indian Surrogacy Law Centre in the legal issues. The link to the article may be found here.

Tags: , , ,

Updates on Jan Balaz Case

Dec 22

Posted by Hari Ramasubramanian in Uncategorized | No Comments

I am making this post partly from the Supreme Court of India. I flew down from Chennai to Delhi for attending the case of Union of India vs. Jan Balaz. The case was posted before the Bench consisting of G S Singhvi and A K Ganguly. The Solicitor General of India, Mr. Gopal Subramanian unfolded India’s stand that India is unable to grant Indian Citizenship to a children merely for the purpose of taking them to their homeland. Moreover, he wanted Mr. Jan Balaz to unconditionally submit himself to the Jurisdiction of the Apex Court even if he moves outside India. Senior Counsel Mr. Rao said he shall undertake to fulfill all conditions as imposed by the Union of India in order to take his children back to his nation. The case is next posted for hearing on the 4th January 2010. There are lots of unanswered hitches which are to be decided by the Supreme Court of India. Meanwhile, Indian Surrogacy Law Centre is still deciding it’s modalities of contributing for this case. I shall write on this subject more when there is an improvement.

Tags: , , , , ,

Updates

Dec 7

Posted by Hari Ramasubramanian in Uncategorized | No Comments

SO much has happened in Surrogacy in India in the last one month. With these turn of events in such quick pace, we feel Indian Surrogacy Law is now getting a better shape. The following are the list of events which cover the quick change in the Indian Scenario of Surrogacy Laws:

  1. Guajrat High Court decides that Indian Surrogate Mother is the Legal mother of the child
  2. India’s First Suit for parental order was dismissed by the Civil Court at Anand
  3. The decision of the Gujrat High Court is challenged by Union of India at the Supeme Court of India.

The events listed above shall have a deep impact on the show nourishing Indian Surrogacy Law. It can be seen that the Surrogacy Law in India is now growing into areas which was never thought before, with issues arising much more mature and complicated. I shall be taking our reader through each of these issues in a phased manner, discussing the impact caused by them. The delay in writing about these was caused due to involvement of Indian Surrogacy Law Centre in these matters.

Tags: , , ,