Maharashtra Medical Council coming up with rules for surrogacy…

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News reports are out hinting that the Maharashtra Medical Council is planning to come up guidelines for surrogacy arrangements. These guidelines shall have an impact on all surrogacy arrangements taking place within Maharashtra. Maharashtra Medical Council is a Statutory Body, established by the law of the State i.e. Maharashtra Medical Council Act 1965. Mumbai, the capital city of State of Maharashtra accounts for a large chunk of all surrogacies in India. There has always been much criticism that Mumbai clinics had made surrogacy very commercial. Many research workers and NGOs had earlier pointed to crude way of selection of surrogate mothers from slums in Mumbai, and the possibility of being exploitation.

Earlier Cases of violation from Mumbai

There have been blatant cases of violation from Mumbai. In 2012, A popular doctor known for international surrogacy arrangements is now facing charges for repeated using a very young girl for egg donation in the year 2012. The charges state that she had been donating eggs at the same hospital even when she was a minor. The girl had died after her last egg donation. She was aged 18 years at the time of the death. The doctor has now obtained a pre-arrest bail before a sessions court. Her employer is also facing charges of abduction along with the doctor.

In April 2014, several clinics in Mumbai had been seen flouting the Ministry of External Affairs rules by providing medical services for foreign commissioning couples, who have not obtained medical surrogacy visa. The Surrogacy Guidelines by the Maharashtra Medical Council may curtail any possible conflicts with regard to surrogacy arrangements.

Surrogacy Guidelines by Maharashtra Medical Council Laudable

This is the first time that a State Government in India has come up trying to regulate the surrogacy arrangements in India. State Governments had done little with regard to surrogacy arrangements or evern with regard to IVF centre. Earlier, the Tamil Nadu Government Directorate of Medical Services had required that all clinics providing IVF services to be registered with them. There is no clear number as to how many clinics had acually registered with them.

This move of the Maharashtra Medical Council is certainly laudable. Medical Councils and State governments need to take an active role that the IVF clinics stick to their core medical services, and not be involved with surrogacy arrangments as an agency.

Surrogacy Guidelines not available in the official website of the Maharashtra Medical Council

The surrogacy guidelines drafted by the Maharashtra Medical Council is not available at their official website. I have not had a chance to go through them yet. I shall keep the blog updated once I read through the Guidelines.

Assisted Reproductive Technology Bill to be introduced in Winter Session of the Parliament?

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I am coming across news-reports telling me that the Winter Session of the Parliament might actually be passing the Assisted Reproductive Technology Bill, 2013 (ART Bill). The Assisted Reproductive Technology Bill is pending for more than 4 years now. The ART Bill has undergone atleast two revisions, but there still seemed several loopholes the last time I read through it. I did not get the idea that I was reading the final draft of the ART Bill and several changes to Bill might be appropriate. I shall certainly try to make a blog-post on the possible improvements to the Bill that would be more practical for the given scenario.

To be frank, I am not convinced of the news report. There have been several instances in the past where the newspapers reported that the Bill was going to be introduced in the Indian Parliament for debate, but nothing actually came out of it.

If India is passing the ART Bill, it could be changing the infertility scenario globally.

Yes, I mean every word of it. After India restricted commercial surrogacy for married couples only, I came across several couples who were not able to afford commercial surrogacy in the US and the same time, did not want to look at a different destination. India had created a niche for itself by being safe and secure as far as commerical surrogacy was concerned. When India disallowed commercial surrogacy for gay couples, it was indeed a big blow for several of them. What I am trying to point out is, Indian Fertility Laws mattered and matters even more now globally.

If India is now coming up with a special legislation, it will matter to a lot of infertile couple around the globe. The fertility laws in India would attract a lot of attention and would have an impact on the way have their family.

India may be the first country to allow commercial surrogacy by way of a legislation

Barring Isreal, I am not sure which other nation has actually passed a law that allows commercial surrogacy. In most nations where legislations allowing surrogacy has been passed, commercial surrogacy has been made illegal. In many conservative states surrogacy arrangements by themselves are considered to be a criminal offence, irrespective of whether it is altruistic or commercial surrogacy. Surrogacy has been subject of political and social criticism in many nations and the Governments have always had a tough time with the laws pertaining to surrogacy.

Given this scenario, if india passes the Assisted Reproductive Technology Bill, India may be first country to actually allow commercial surrogacy arrangements by way of a legislation.

The following issues may be covered in the Assisted Reproductive Technology Bill

  • Age limits for the surrogate mothers
  • Minimum compensation payable to the surrogate mothers in surrogacy arrangements
  • Eligibility criterion for International Couples to take up surrogacy arrangments in India

I hear that the Assisted Reproductive Technology (Regulation) Bill, 2013, has been cleared after rounds of discussions with various ministries and other stakeholders and will be presented before the Union Cabinet soon. Secretary (Health Research) VM Katoch is said to have spoken at a national conference on surrogacy of the same.

I hope that the wait for the Assisted Reproductive Technology Bill is worth it and that the law brings in regulation for the protection of the surrogate mother and the commissioning couples.

 

Thailand to ban Surrogacy

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Thailand’s changing political scenarios may affect surrogacy as well. The coup leader turned Prime-Minister, Gen. Prayuth Chan-ocha, has announced the policy of the new government. Among other issues that had been discussed by him, he has announced that his new government vows to abolish the commercial surrogacy industry in Thailand. He had also stated that a new law shall be passed to make illegal the commercial surrogacy arrangements in Thailand. Even worse, the law might be expected by end of 2014.

I have no idea about the domestic surrogacy arrangements in Thailand. There was never much news about it and it is understandable that the numbers are lesser. But international surrogacy arrangements in Thailand did have an impact on the globe. A lot of couple from Australia and US had moved to Thailand after the India had tried to regulate the surrogacy for foreigners. India visa rules prohibited surrogacy for gay couples, unmarried couple who are in de-facto relationship and couples who were married for less than 2 years. India also required that the country of origin of the commissioning parents allow surrogacy arrangements in order to take up surrogacy arrangements in India. These rules in India made Thailand as a viable option for international surrogacy arrangements. A lot of medical tourism companies even promoted Thailand as a safe place for surrogacy, even though the Government had not acknowledged it. There is in fact Thailand medical council resolution prohibiting surrogacy. Even with such regulations, the Thailand clinics offered surrogacy services pretty openly. Unassumingly a lot of desiring parents took up surrogacy in Thailand.

Thailand new governement’s view over surrogacy arrangement has startling effects.

We are witnessing increasing reports of parents who had children through surrogacy in Thailand and unable to leave the country after the birth of the child. There is no clear statement from the Thailand Government as to how many parents have been stranded with their children in Thailand at the moment. Given the number of incidents reported in the papers, the numbers seem fairly high. Somehow the regulations in that country does not give a window period for enforcing the new ban.

Thailand should give a window period for those who had taken up surrogacy earlier

We all remember India’s legal conflicts when a similar issue arose here. When the Home Ministry came out with regulations for granting visa for surrogacy for international patentients prohibiting single/gay couple, India gave a window period of atleast 6 months. It was unofficially extended for another 2 months. I really hope that Thailand gives a similar window period for enforcement of the new rules, in interest of those who have taken up surrogacy arrangment. It is disheartening that childless couple wishing to have a family should be put through so much of a struggle, for just trying to realize their basic dream of parenthood.

The despicable Thai Surrogacy

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Surrogacy could be one of the biggest boon for the mankind. Scientific advances in reproductive medicine had reached a peak when a woman who cannot carry a child, could still have a genetic child of her own. An unimaginable scientific improvement, coupled with a positive law, changed the lives of millions of couples and single parents. International surrogacy become popular with childless couple taking up borderless journies for realizing their parenthood dreams. As alwasy, the biggest boon for the mankind can of course be turned into a most cruel weapon.

Overseas surrogacy has always been a subject of the controversy for serveral reasons including possible exploitation of surrogate mothers, surrogacy being turned into a factory in developing countries, lower medical costs, difficulty in returning back to home nation, legal compexities, conservative religious views etc. However, surrogacy is now found repeatedly in the news for the most hateful reasons.

The recent new reports about the surrogacy scandal in Thailand is truly shocking and disgusting. As a professional involved in fertility law for almost a decade, I find it truly distressful that surrogacy arrangements could be exploited to this extent. We have had other similar situations earlier. I distinctly remember of the case of Theresa Erickson, the US attorney, who had been charged of a baby selling racket. I remember the case of an Australian gay Couple who had taken surrogacy in Russia, in actuality were phidophilles and had sexually exploited their own son. Few more cases linger in my mind, but the Thailand case is much more than expected.

Thailand as Surrogacy Destination

Thailand emerged as a popular option for surrogacy after India avoided commercial surrogacy for single parents. Indian Visa rules required that the commissioning parents must be a man and a woman married for a period of atleast two years to be granted visa for taking up surrogacy arrangement. A lot of couples turned to Thailand, which was still unregulated and where anything was done. There was never a whisper about the legality about surrogacy arrangements in Thailand. In fact, the turn into this new direction was prompted by several international surrogacy agencies who claimed Thailand to be perfectly safe and legal. But, it turned out to be otherwise. News now emerge that commercial surrogacy is illegal in Thailand. Commissioning parents who have taken up surrogacy arrangements are required to get a court order before they get to move out of Thailand.

Baby Gammy is left behind in Thailand by her parents

First, the issue started with a surrogate mother in Thailand claiming that an Australian Couple decided not to take one child of twins borns to her through surrogacy to Australia. Reportedly the reason provided by the surrogate was that the child was affected by down-syndrome and the commissioning couple were not interested in taking care of such a child. All defence for the couple stating that the child did not have down-syndrome turned out to be false. This started the uproar on social media as well as on main stream media. The Australian Authorities started to probe the issue.

Authorities in Thailand started probing the role of the surrogate mother. Though widely rampant and openly advetised and available, Commercial surrogacy arrangements were not recognized in Thailand. The surrogate mother was questioned by the police these circumstances.

Even worse, the Australian Father who had the children through surrogacy in Thailand had criminal records of child sex abuse. This update shook the world. A wonderful boon of surrogacy was in the hands of a man with history of being a child predator.

But thats not all. Investigation in Thailand revealed more.

Thirteen Babies through Surrogacy for One Father

After the crackdown of the Australian surrogacy case, the authorities started inspecting all surrogate homes, where the surrogate mothers were accomodated during the surrogacy arrangement during the period of gestation. Since commercial surrogacy was illegal in Thailand, a lot of such surrogate homes were raided. One such raid revealed a shocking fact. A single Japanese man had fathered 13 children through surrogacy. He was genetically related to each of them. At the raid, it is reported that few surrogate mothers were still pregnant with his children. The Japanese man, Mitsoetoke Sekata wanted to have more than 100 children throguh surrogacy reports Japanese Media. He had somehow come to the conclusion that the best he could contribute to the world is by having more children. The Japanese man is also under investigation. Meanwhile, the doctor, Pisit Tantiwattanakul, who had assisted the japanese man is also under scanner and has been arrested by the Military Police in Thailand.

I am to comment on these on my next post. I would like to quote infamous US surrogacy attorney Theresa Erickson at the time of being arrested: “I am tip of the ice-berg.” I am not sure what rude shocks lies for the future.

Jan Balaz Update

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There seems to be an update with regard in the Union of India vs. Jan Balaz Case, more known as the German Surrogacy Case. This is the case where child was born through a surrogacy agreement in Anand, Gujarat with an Indian Surrogate Mother. The child could not obtain German Citizenship as surrogacy agreement is considered illegal in Germany. The German Couple applied for an Indian Passport for the child, quoting the indian surrogate mother as the legal mother of the child. The Passport Authorities issued the passport to the child, but later cancelled the same as the surrogate mother cannot be considered to be the legal mother of the child. The German Couple went against the cancellation to the Gujarat High Court. The Gujarat High Court provided relief to the German Couple ruling that the surrogate mother is the legal mother of the child.

The Union of India went on appeal praying that the surrogate mother cannot be considered to be the legal mother of the child and that the issuance of the Indian Passport to the child is not in accordance with law.

The Couple had legal proceedings pending in India as well as Germany. After a series of diplomatic conversation, the German Government had allowed the children to return to Germany. The Couple left for Germany during the pendency of the litigation in India and Germany as a temporary measure. Even at the time of leaving the county, the children did not have German Citizenship.

The case seemed to come up for hearing on 4th September 2014. The Bench consisting of HON’BLE MR. JUSTICE RANJAN GOGOI and HON’BLE MR. JUSTICE R.K. AGRAWAL have discussed the legal implications of international surrogacy arrangements and the possibility of the child being a citizen of no Nation. The case comes up for hearing next after 6 weeks.