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.

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.

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.

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.

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.

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.

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.

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.

The Times of India carried the following article on Surrogacy by Gay Couples in India.

BUNDLE OF JOY: Brad Fister with his child, Ashton, in Hyderabad on Thursday
US gay couple rents a womb in Hyderabad
City Woman Delivers Baby For Rs 4 Lakh
Roli Srivastava | TNN

Hyderabad: At an upmarket ethnic wear store in Banjara Hills, US citizen Brad Fister (29) carefully cradled his 22-day-old baby who carries his genes but is ‘made’ at a clinic in Hyderabad. On Thursday, 24 hours before he leaves for Kentucky, US, where he lives with his same-sex partner Michael, Fister said he was happy he was leaving India with ‘his’ daughter.

Fister and Michael, who owns a computer firm, spent an amount of $60,000 to get this child, are the first among a bunch of gay couples who are coming to Hyderabad seeking surrogate mothers to carry babies for them. In fact, Fister’s daughter, who he has named Ashton, is the first surrogate child case of an American couple handled by the US Consulate in Hyderabad.

Fister had come to Hyderabad last year when he donated his sperm which was fused with an egg donated by an Indian egg donor. The resultant embryo was then implanted in a surrogate mother and this entire procedure was carried out at a citybased infertility centre, a first such case (of two dads) for them. The child was delivered by the surrogate mother on January 28 and Fister says the baby girl is his reflection with his “chin and lips’’. The surrogate mother got paid Rs 4 lakh for carrying the baby, the going rate for rented wombs in the city. The presence of international clients in the surrogacy industry in Hyderabad, say industry insiders, have led to higher rates for surrogate mothers.  Rates, they say, have doubled over the last few months. Of the total Rs 4-4.5 lakh charged for the surrogate mother, the woman who delivers the child gets Rs 2.5 lakh and another one lakh is earmarked for her diet and comfort during the ninemonth period. The remaining amount of Rs 50,000 goes to the registered medical practitioner who would get the surrogate mother. Surrogacy, a $500 mn biz Hyderabad.

While questions are being raised on how ethical surrogacy is, it is an established business in the country with its worth reportedly pegged at around $500 million.

For those like US citizen Brad Fister, surrogacy is a boon. An interior designer, Fister says he always wanted a baby but adoption norms in the US are difficult. He made his first visit to India on January 25, 2009 after watching an Oprah Winfrey Show episode on surrogacy which featured Dr Naina Patel of an infertility clinic in Anand. She was, predictably, their first choice “But, Dr Patel declined because we are gay couple,’’ said Fister. He then came to Hyderabad, to Kiran Infertility Centre, through one of the many agencies that have come up to help such couples, both gay and straight, with surrogate mother deals. Of these, Surrogate Abroad Inc. that offers people based out of the US an end-to-end surrogacy service in India, clicked.The couple had already spent $ 20,000 in their quest for a child in the US and the promise of having an escort in India to facilitate their journey through the dusty streets leading to infertility clinics seemed good. For many couples, India is also a safe haven given that commercial surrogacy was legalised in 2002. Besides, the country has an additional advantage of the biological mother not staking claim to the child.

But if half the battle was about a pregnancy clicking, the remaining half was about getting the paperwork in place. Fister, for instance, underwent a DNA test along with his daughter at the US Consulate, for the child’s birth certificate. This was followed by an interview at the Foreign Registration Office at Purani Haveli for the child’s visa. At this point even the surrogate mother was also interviewed and her consent taken.

Benhur Samson, a native of Hyderabad and now based out of Chicago, is the CEO of Surrogate Abroad Inc, and has handled 26 cases so far. He says that a lot of people were going back from India disappointed, with nobody to finetune their search for a good clinic or even their stay here. And this is where he steps in. The flourishing business aside, legal eagles like G R Hari, partner, Indian Surrogacy Law Centre, Chennai, say that several surrogacy cases have landed in various courts and legal opinion should be taken before any international couples take a womb on rent in India.

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.