There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

We have mails pouring in from anxious intended parents worrying about their prospects of having a surrogacy arrangement in India.
“How safe is it to take up surrogacy in India as the Supreme Court of India is now considering the merits of surrogacy? What if the Supreme Court of India gives a negative verdict?” is the usual concern.
And my usual answer would be “it would be the safest way to parenthood if you are informed.”
International surrogacy arrangements (anywhere it may be) always involve legal complexities and uncertainties irrespective of the countries involved. No country in the world can claim that surrogacy in their nation is perfectly uncomplicated and without any legal hassles. The simple reason for this is surrogacy involves very basic but serious questions of law relating to citizenship, nationality, motherhood, and parentage etc. Any country would have laws with these laws forming its backbone and conflict of laws in many is natural.
However, it is most important that you are not stuck into the legal issues without even knowing the depth of it. It is most recommended that intended parents assess what might be possible issues that they might be facing if they take up surrogacy in India. They are required to assess the risk factors against them, and weight it against the positives. Some countries have an established route to take back the child but many don’t. But in all cases, it is most advisable to know your cues before proceeding.

Legal Audit and Risk Assessment
For this purpose, the Legal Audit and Risk Assessment plays a key role. Legal Audit and Risk assessment involves a comparative study of the laws of homeland of the intended parents and that of India to speculate the issues of conflict that might arise and as to tackle them. Special concern at this occurs to intended parent who are gays as the Indian Law in not uniform in may of the cases.

When should Legal Audit and Risk Assessment be taken up?
It is very important that Legal Audit is taken before surrogacy arrangement is made with a clinic in India so that you aware of the laws that would affect you and you can act in a cautioned manner. However, couples who have already crossed the implantation of the embryo stage, but are still uncertain on how to take back the child would can take up the Legal Audit and Risk Assessment.

Israel High Court of Justice decided on an application filed by a gay married couple for taking up third party reproduction and raise a child. The High Court after deep thought elaborately decided that the matter was one to be decided by the Congress (Knesset) and not by the court as the matter involves policy of the state.

The frame of the argument was in short that the availability of the surrogacy arrangement only to heterosexual couples was arbitrary and violates the constitution, which guarantees equality. The state vehemently opposed this argument stating that the matter had far reach implications. The State of Israel decided to establish a committee to study the issue of third party reproduction.

Another interesting question that was considered was the extent of using scientific improvements such as surrogacy. It was pleaded by the State that surrogacy was allowed in Israel only for the intended parents who could not otherwise reach parenthood for medical reasons. It was argued that this couldn’t be stretched for homosexual couples.

The Supreme Court of Israel also sits as the High Court of Justice. This function is unique to the Israeli system because as the High Court of Justice, the Supreme Court acts as a court of first and last instance. The High Court of Justice exercises judicial review over the other branches of government, and has powers “in matters in which it considers it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal.”

It is reported by few of the newspapers that Bulgaria is all set to amend its presently existing Health Act allowing surrogacy. Surrogacy is illegal in Bulgaria with the presently existing legal system. It is stated that the amendments would enable women aged between 25 and 45 years of age to be surrogate mothers. It was also decided that any woman would not be able to act as a surrogate mother more than twice and the amendment also provides for a register of the surrogate mothers in Bulgaria. According to the proposed legislation, surrogacy can be chosen only for medical factors resulting in infertility.

Dominique and Sylvie Mennesson Photo: AFP

India does not seem to be the only country caught in midst of legal controversies over issues of surrogacy. France is also facing a similar question.

Since 1994, surrogacy arrangements are held to be illegal in France according to The French Law – Article 16-7 inserted by Act No. 94-653 of July 29, 1994 Art.1 I, II, art. 3 Official Journal of July 30, 1994 states -”Any agreement on procreation or gestation on behalf of others is void.”

A French couple, Dominique and Sylvie Mennesson paid a surrogate mother in California about $10,000 in 2000 to carry their child. The surrogate mother carried the child to term and have birth to twin daughters. On birth the twins Isa and Léa, were given US birth certificates recognising the Mennesson couple as the legal parents – but the French authorities refused to accept these.

The Paris Court of Appeals had held that Dominique and Sylvie Mennesson were the legal parents of the children, but refused to consider the children as French nationals. The Mennesson couple have reportedly stated that they will take their case to the Cour de Cassation which is France’s highest court. They hope to set a legal precedent for other parents of children born to surrogate mothers, after six years of legal action.

A draft law hoping to overturn the present law of holding any agreement for procreation of child was presented to the Senate in January, but has yet to be discussed.

The Jan Balaz Case at the Supreme Court is now taking wild turns with the suggestion of the Solicitor General of India being turned down by the German Couple. As reported from several sources, the German Couple’s Counsel had expressed their willingness to contest the matter before the Supreme Court rather than wait for the Government with a favourable response. The Solicitor General of India had earlier sought time before the Supreme Court stating that the Government is trying to do its best for the immediate settlement of the matter in an amicable manner. The German Couple’s Counsel had stated that four month had already elapsed the same way and they wished to fight the matter rather than wait for the Government to come with an amicable settlement. The German Couple’s Counsel had represented before the Supreme Court that the decision of the Gujarat High Court may be allowed to operate since the Government of India does not have a problem in allowing the children for going abroad. The Solicitor General protested against this argument stating that the holding of the surrogate mother to be the legal mother of the child would have far reaching impact and that cannot be allowed.

The Supreme Court then directed the Central Adoption Resource Agency (CARA) to consider as a one-time measure the plea of the German couple for adoption of twins born through a surrogate Indian mother as a special case. The CARA is the body which was set up pursuant to India becoming a party to Hague Convention on Inter-country Adoption in the year 2003.

No arguemnts has yet been presented before the Supreme Court of India on the effects of holding the surrogate mother to be the legal mother of the child. The stand of other intended parents who are presently taking up surrogacy in India has also not been made available before the Supreme Court. The Supreme Court decision would be affecting every intended parent who is presently taking up surrogacy in India.

The AFP (Agence France-Presse) writes on Gay surrogacy in India. The link to the news article in DAWN.COM and CANADA.COM.

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 16^th 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.

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.