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.

Writ filed by Sudanese National dismissed in Punjab and Haryana High Court

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The Punjab and Haryana High Court dismissed the Writ Application filed by a Sudanese National praying to allow surrogacy in India for single parents. The basis of the Writ was that Ministry of Home Affairs had issued a notification issued a notification addressing to the Ministry of External Affairs stating that foreigner wishing to take up surrogacy in India must be a couple married for atleast a period of two years. The petitioner herein Shihabeldin had prayed that surrogacy must be allowed for single parents as well. The Bench constituing HON’BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN PALLI dismissed the plea preliminarily stating that the ART Bill is pending and the Court cannot void the vacuum in the absence of law.

We are, thus, confronted with a situation where undoubtedly there is a complex issue at hand of surrogacy qua single parents who are foreign citizens. It cannot be lost site of that there would have to be checks and balances in such a situation. As to what would be the final version of the Act and what are the checks and balances would in turn depend on the final proposal of the Cabinet which would in turn have to be placed before the House and only thereafter would it be known. What had persuaded us to intervene in this matter was the plea of the learned counsel for the petitioner that earlier the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (Annexure P-4) were in force. There appeared to be some conflict between the guidelines issued under the Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the guidelines of the ICMR. However, the conflict for the interim period is resolved by all the respondents being in unison that in the interregnum period the arrangement which would prevail would not permit the single parent foreign citizen surrogacy. The final version would only emerge as stated aforesaid after the Parliament debates on the law. In view of the aforesaid position, we are not inclined to issue a writ in favour of the petitioner, a foreign citizen, who seeks single parent surrogacy as the law in this behalf itself is sought to be enacted and it is at a final stage. This is not a matter where the stated vacuum can be filled in by the Court in the interregnum period, moreso when there is now a unanimous view of the different Ministries of the Government of India as to what should prevail as an interim arrangement. The petition is accordingly disposed of with a hope that the final view would be available with the constitution of the new House which would have the benefit of debating the matters pertaining to the law post the Cabinet having scrutinized the same

In my personal opinion, pending of the ART BIll before the Parliament certainly is not a ground for the dismissal of a Writ. The Court should have appreciated the situation as it is existing today instead of merely waiting for the law to come into force. The Court should have gone into the merits of the case before dismissing the same. The ART Bill has been pending to be passed for a very long time.

The judgment of the Punjab and Haryana High Court make surrogacy in India still inaccessible for single man or woman and gay parents to take up surrogacy in India.

Women and Child Development Ministry comments on Assisted Reproductive Technology Bill

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This is certainly good news. The Union Women and Child Development Ministry, Government of India is in favour of surrogacy for Single and Gay Intended Parents apart from normal heterosexual couple. The Union Women and Child Development Ministry in its comments to the Health Ministry on the Assisted Reproductive Technology (Regulation) Bill, 2013 has stated that the definition of the word “couple” is narrow and must include everyone irrespective of the marital status.

Number of Surrogacies for Surrogate Mothers

The Union Women and Child Development Ministry has proposed that surrogate mothers should be allowed have four pregnancies, including their own children. The Assisted Reproductive Technology (Regulation) Bill, 2013 had proposed that surrogate mothers should not have more than three pregnancies. The Ministry had also proposed that there should be a two-year gap between every childbirth. The Ministry in its comments stated that women above the age of 21 years can be surrogate mothers, with other criterions such as low Body Mass Index and other medical risks such as cardio-vascular diseases, thyroid problems being taken into consideration.

Compensation to the Surrogate Mother

The Union Women and Child Development Ministry is clearly in favour of monetary compensation for the surrogate mothers. The Union Women and Child Development Ministry had opined that a minimum compensation should be paid to the surrogate mother after the Embryo Transfer is complete, irrespective or success or failure of the procedure. Apart from this, the Union Women and Child Development Ministry also provided that the surrogate mother should be covered for contingencies such as medical risks.

Until now, only two ministries have commented on the Assisted Reproductive Technology Bill, which has been proposed by the Ministry of Health – Directorate General of Health Services and the Union Women and Child Development Ministry. The Ministry of External Affairs and the Ministry of Home Affairs have not commented on the Assisted Reproductive Technology. The Ministry of Home Affairs was the agency of the Government that had introduced the restrictions for entry taking up surrogacy in India by introducing the new surrogacy visa.

Contradictory view from DGHS

The Directorate General of Health Services had commented on the Assisted Reproductive Technology Bill last month with a controversial view that surrogacy in India should be available only for people of Indian Origin and not for Foreigners. The view of the DGHS created much of a buzz in the online and offline space with debates questioning it stand. In its letter, the DGHS had proposed three recommendations on the Assisted Reproductive Technology Bill:

  • Surrogacy in India should be allowed only for Indian citizens and people of Indian Origin
  • Secondly, Surrogacy in India should be taken up only by married heterosexual couple and not single or gay parents
  • Thirdly, a woman can be a surrogate only once in life time

The Union Women and Child Development Ministry has now provided a completely contradictory view from that proposed by the Directorate General of Health Services. We would be required to wait and see whether the Union Women and Child Development Ministry response to the Assisted Reproductive Technology Bill would be accepted and incorporated in the final draft of the bill.

Sudan National moves High Court Challenging New Surrogacy Visa Regulation

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A Sudan National, Shihabeldin, has moved the Punjab and Haryana high court challenging the International Surrogacy Visa Regulation of the Ministry of Home Affairs (MHA) which restricts international surrogacy arrangements to married couple (married at least for a period of two years) and bars international surrogacy for single foreign nationals and unmarried couples. The regulation also requires the letter from the country of origin stating that international surrogacy is recognised by their country and that the child born through the surrogacy arrangement would be allowed into their country.

Admitting the application, a division bench headed by Chief Justice Sanjay Kishan Kaul of the Punjab and Haryana high court issued notice to the Ministry of Home Affairs instructing the ministry to file a response to the application. According to the application, the Sudan National is being aggrieved by the fact that he could not take up surrogacy in India as a single parent.

The brief facts as reported are that the Petitioner is a resident of Sudan and desired to become a single parent through surrogacy in India and had contacted a medical facility in India. It was then it came to his knowledge that the MHA had issued a regulation restricting single parents from taking up surrogacy in India. Aggrieved by the same, he had file the present application.

It is reportedly argued that ICMR guidelines has been placed reliance upon to support the contention that single parent may take up surrogacy in India and the new visa regulation in place is contradicting the same. Further, it was reportedly argued that the foreign nationals couldn’t be discriminated by restricting them from taking up surrogacy in India.

It could be recollected at this juncture that the Supreme Court had in the year 2008 decided the case of Baby Manji vs. Union of India, wherein the grandmother of the child was given clear passage to take the child back to Japan. In 2009, arose another interesting case of Jan Balaz, wherein the Supreme Court of India facilitated the movement of the twin children to Germany, even though Germany vehemently tried stalling the same.

Tamil Nadu Fertility Clinics to be registered under Directorate of Medical Services (DMS)

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I am came across a news report that states that the infertility clinics across the state of Tamil Nadu are required to register with the Directorate of Medical Services (DMS), the Health Authority in the State of Tamil Nadu. 
Indian Council for Medical Research (ICMR) has also come up with the initiative to register all Assisted Reproductive Technology Clinics across the country under the “National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in India.”
Till recently there has been no single register to monitor the activities of the Assisted Reproductive Technology Clinics either in every state or for the whole country. I am given to understand a lot of clinics have made their way to register themselves as ART Clinics.
Foreign Nationals taking up surrogacy in India can take up the surrogacy arrangement only in ART Clinics found National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in India. The said requirement is mandatory for the purpose of granting medical surogacy visa.

Commissioning Mother entitled to maternity benefits rules Madras High Court

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The Madras High Court had ruled that a woman who had a child through surrogacy is entitled to the maternity benefits and leave. In case of K. Kalaiselvi vs. Chennai Port Trust.

The Madras High Court had decided the question if a commissioning mother is entitled to maternity benefits after the birth of the child. In this particular case, the commissioning mother was an employee of the Chennai Port Trust. She had a son aged about 20 years, who met his death in a road accident in the year 2009. She took up a surrogacy arrangement with a Hospital in Chennai and had been blessed with a female child born through surrogacy in the year 2011.

She had applied for maternity leave, which was partially granted. Her request to include the child born through surrogacy in the FMI card was rejected. The commissioning mother had also submitted all documents to demonstrate that the child born through surrogacy was her legal child and that she had all such rights as a parent having a child through normal means. The same was not accepted by her employer.

Aggrieved by the order refusing her maternity benefits, she moved the Madras High Court praying that she be declared to be the legal mother of the child and be provided with maternity benefits as would be applicable to natural birth. It was argued on behalf of the commissioning mother that surrogacy is only a scientific advancement, which has not been incorporated into the rules for maternity benefit. Though such a specific rule does not exist for surrogacy, it exists for adoption. That being the case, the commissioning mother be entitled for maternity benefits as she would be entitled. The Chennai Port Trust formally objected stating that there is no specific provision for maternity benefits for children born through surrogacy and the same may not provided to the commissioning mother.

Hon’ble Justice K. Chandru decided the issue with the following observation:

15. This court do(es) not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement. For all practical purpose, the petitioner is the mother of the girl child G.K. Sharanya and her husband is the father of the said child. When once it is admitted that the said minor child is the daughter of the petitioner and at the time of the application, she was only one day old, she is entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Leave Regulations. The purpose of the said rule is for proper bonding between the child and parents. Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government. Therefore, the petitioner is entitled for leave in terms of Rule 3-A. Any other interpretation will do violence to various international obligations referred to by the learned counsel for the petitioner. Further, it is unnecessary to rely upon the provisions of the Maternity Benefit Act for the purpose of grant of leave, since that act deals with actual child-birth and it is mother centric. The Act do not deal with leave for taking care of the child beyond 6 weeks, i.e., the post natal period. The right for child care leave has to be found elsewhere. However, this court is inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987 also to include a person who obtain child through surrogate arrangement.

As has been pointed out by the Hon’ble Madras High Court, maternity leave is the time when a mother would be able to bond with the child. The bonding is not a luxury for a parent, but a basic necessity of any parent. The Chennai Port Trust should have provided the commissioning mother the maternity benefits as she may be entitled to otherwise.

A case of Norwegian Royal Intervention

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Norway princess surrogacy india

Norway has always maintained a conservative approach to surrogacy arrangements and surrogacy has always been a subject of national debate. The Norway government always discouraged their nationals for taking up commercial surrogacy arrangements. An unconventional development has taken place with these backgrounds with a royal intervention.

Norway’s Crown Princess Mette-Marit had come down to India secretly to help her gay friend and his husband for taking care of the new born children born through surrogacy in India. The gay couple took up a surrogacy arrangement in New Delhi, India; but were unable to come down to India for taking care of the new born twins. One of the parents was an employee of the Palace and a friend of the Crown Princess. The Crown Princess flew down to India immediately with Diplomatic Passport and nursed the children. The Indian Authorities were not informed of the arrival and the staff of the hospital where the children were born took her to be a nanny. A relative of one of the parents later came down to India and relieved the Crown Princess. The new-borns were granted VISA in November 2012, after which the children were taken back to Norway.

The crown princess is said to have acknowledged the national debate on surrogacy but insisted that she was not taking sides over the issue; and that she did what a friend has to do.

Couple of years back, I handled the case of a single mother from Norway who had taken up surrogacy in India and could not take the children back to Norway owing to high opposition from the Norway government. After a long debate with various governmental bodies, she was able to take the child back almost 2 years from the date of the birth of the children. I certainly find this development surprising.

Pakistan requires legislation on Surrogacy

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Pakistan surrogacy india

Pakistan found itself in the unlikely company of India in the group of nations that require a special legislation on surrogacy to deal with complex issues of domestic and international surrogacy. There is no special legislation on surrogacy in Pakistan, and the Lahore High Court decided that surrogacy is neither allowed nor permitted.

Pakistan’s Rawalpindi Bench of the Lahore High Court decided the first case involving a surrogacy arrangement and subsequent parental rights that arose from it. The crux of the facts of the case is that the biological mother, Farzana Naheed, claims complete parental rights over the child, Fatima, under the ground that she was the wedded wife of the biological father when the child was born. The alleged Biological Father of the child, Farooq Siddique, in his late 50s, claims that he had entered into a surrogacy agreement with the biological mother, and that the child was born through surrogacy. He further claims that the child is not genetically related to the biological mother, Farzana.

With this background, the biological mother filed an application under the Code of Criminal Procedure for the custody of the child in the Sessions Court. The Sessions Court transferred her custody to the mother two weeks after the birth of the child. The child is now is now eight years old and her legal status is still in limbo.

The alleged Biological Father of the child, Farooq Siddique, then moved to the Rawalpindi Bench of the Lahore High Court on appeal and presented the surrogacy agreement to the Court to assert his claim over the child. The High Court hearing a case on surrogacy for the first time, said that there was no law on surrogacy in Pakistan. The court further stated that even if there is a law that allowed surrogacy in Pakistan, there is no material evidence to prove that the Siddique is the biological father of the child. Siddiqui had alleged that Naheed and her relatives had tried blackmailing him for more money while she was pregnant. Contrastingly, the court also did not accept the fact that the marriage took place between the biological mother and Farooq Siddique as the biological mother could not prove her marriage to him in a satisfactory manner.

The court stated that the custody of the child should rest with the biological mother Naheed and that her poverty should not stand in her way for exercising parental rights over her child. Further, since there is no special legislation on surrogacy existing in Pakistan, the Court had no legal material to accept or reject the prayer of the biological mother and decided the case as in the case of a normal petition for custodial rights.