United Kingdom High Court rules on commercial surrogacy contracts

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Last week we had an interesting development at the United Kingdom relating to commercial surrogacy. Mr. Justice Headley had pronounced another landmark decision pertaining to surrogacy. Mr. Justice Headley had earlier decided the case of Re: X & Y and also Re: K (Minors) both of which are pertaining to international commercial surrogacy.

The matter relates to a commercial surrogacy arrangement made in Illinois wherein agreements for commercial surrogacy are legal. The agreement is no doubt illegal as per the 2008 legislation in the United Kingdom. Mr. Justice Headley opined that he remains satisfied that “the payment in excess of the reasonable expenses were made in this particular case to the surrogate mother.”

He also opined: “I observe only that ‘reasonable expenses’ remains a somewhat opaque concept. The approach that I have adopted is to treat any payment described as ‘compensation’ (or some similar word) as prima facie being a payment that goes beyond reasonable expenses. It is necessary to emphasize (as comparisons between the USA and Western India graphically illustrate) that no guidance can be gained from ‘conventional’ capital sums or conventional quantum of expenses. Each case must be scrutinized on its own facts.” Mr. Justice Headley stated that it is important every intended parent duly acquaints themselves about the international surrogacy arrangements prior to entering to the same.

With the introduction of the 2008 legislation, the court stated that the welfare of the child is not only the court’s first consideration, but also the paramount consideration. The court weighed and balanced between the public policy considerations and welfare of the child to decide in favour of the welfare of the child. It was stated that the court would be able to withhold an order if otherwise welfare considerations supports its making. “It underlines the court’s earlier observation that if it is desired to control commercial surrogacy arrangements, those controls need to operate before the court process is initiated i.e. at the borders or even before.”

This decision gains importance in view of the growing number of intended parent flying to India for commercial surrogacy. As stated in the decision, it is important the intended parents are well informed about the legal position in India and in UK prior to entering into commercial surrogacy arrangements. It has to be seen on a case by case basis and never there is a general rule.

The official copy of the full text decision is available here.

Police to probe Surrogacy dad in Hong Kong

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An interesting development has taken place in Hong Kong.

Mr. Peter Lee Ka-kit, a resident of Hong Kong had triplets through surrogacy in America. Mr. Peter Lee Ka-kit is son of Mr. Lee Shau-Kee, 18th richest man in the world ranked by the Forbes.

Commercial Surrogacy is banned in China and it is a punishable offence in China irrespective of where the surrogacy arrangement is entered into.  The matter is reportedly referred to the police who might be initiating the first prosecution under the ordinance since its introduction in the year 2000.

New South Wales passes the Surrogacy Bill 2010

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The New South Wales in  Australia passes  the Surrogacy Bill 2010 which was much debated by the citizens prior to its introduction. The highlights of the Bill is that Altruistic Surrogacy in now allowed and commercial surrogacy remains to be banned. The legislation also provides for entering into commercial surrogacy an offence –

Clause 8 ) Commercial surrogacy arrangements prohibited – A person must not enter into, or offer to enter into, a commercial surrogacy arrangement. Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.

Bill is a 48 page document which I am yet to go through. I am yet to consider the impact of this bill on international surrogacy arrangements. I would soon be writing on that when time permits.

Copy of the bill is available here – The Surrogacy Bill 2010 of the New South Wales and the copy of the Legislation is found here.

Earlier this year, I wrote on the Queensland state in Australia passing the law on Surrogacy. The post is available here for reference – http://www.blog.indiansurrogacylaw.com/blog/2010/02/queensland-decriminalizes-altruistic-surrogacy/

New York Court upholds Parentage decision of California court in surrogacy case

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New York does not allow commercial surrogacy and New Yorkers opt to go for some other place where surrogacy is legal to have children from there. A male gay couple from New York had taken up surrogacy in California. The embryo was created out of the egg from an egg donor and sperm from one of the gay couple. On birth of the child, pursuant to the standard California practice, they approached a court there, along with the surrogate mother and her husband and obtained a pre-birth order naming the gay couple as the parents of the twin to be born. The twins were born in the year 2001 and the names of the gay parents appeared on the birth certificate.

Later, the gay couple broke up. The parent, who is genetically related to the child filed for child support in the New York Family court.  It was argued by the defendant, who was genetically unrelated to the child, that parentage deriving from surrogacy was not recognized in the New York and hence he was not liable to pay the child support. On October 4 2010, Magistrate Rachel Parisi rejected that argument. It was noted by her that there is no public policy exception to the enforcement of judgments from courts in other states. The parentage decision was entitled to recognition in the New York. She also relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement.

This decision is significant for number of New Yorkers who take up international surrogacy. This decision also highlights the importance of having a parental order on birth of the child.

Surrogacy Scam

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The Oregon woman had met a New Zealand Couple over the Internet and accepted that she would carry their child. The intending couple had shipped her their gametes in a special container used to ship biological material. The couple state that Audrey Mogallon had received the container but did not return it. Later, she had sent the couple pictures of positive pregnancy tests and ultrasound scan reports, modifying the dates of earlier scan reports taken when she was pregnant with her own kids. The couple grew suspicious when the information stopped coming in. It was later that they came to realized that their trusts has been breached by her and that she was never pregnant with their child.

The police had also reported that they have received a second complaint relating to similar circumstances from a couple in Washington who had made payment to her upfront.

Surrogate Mothers need independence in decision making

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An unnamed Canadian couple who had taken up surrogacy created a new row of ethical  moral debates over their surrogacy arrangement. The surrogate mother was pregnant with their child using embryos created out of their own gametes. When in the womb of the surrogate mother, the child was found to have medical risks to be born with Down’s Syndrome. The Intended Parents who had come to know of this wanted the surrogate mother to abort the child. The surrogate mother refused for the same. However, when the intended parents threatened to withdraw their support for the surrogacy arrangement, the surrogate mother decided to abort as she had two kids of her own. Neither the intended parents nor the surrogate mother approached the court of law. The above case was reportedly enumerated by Dr. Seethram at the Canadian Society of Fertility and Andrology conference during his presentation. These facts had brought to the world a new set of issues where the surrogate mother would be required to decide freely without any coercive environment. The intervention of governmental agencies occupied a prominent scope in the debates.

Robert G. Edwards conferred the Nobel Prize

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robert-edwards surrogacyIndian Surrogacy Law Centre salutes Dr. Robert G. Edwards on being conferred The Nobel Prize in Physiology or Medicine for the year 2010. The medical break through brought by him had certainly furthered the reproductive medicine beyond a normal scope. The Nobel Prize has found itself in the hands of a distinguished person, who has been able to withstand the pressure of the society in terms of the ethical concerns even at the most early times of his research in the human embryo. The birth of Louise Brown in the year 1978 to Lesley and John Brown had created history of birth of the first human through In Virto Fertilisation. IVF had moved from vision to reality and a new era in medicine had begun. Since then several improvements have been made in the field of embryology wherein work conditions have been greatly perfected.

It is also noteworthy that the world’s second IVF child “Durga” (Kanupriya Agarwal) and India’s First was born merely three months after the birth of Louise Brown which was performed by Dr Subhash Mukhopadhyay in 1978.

Update on Bulgaria Surrogacy Bill

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Bulgaria is now making moves to amend its laws to allow surrogacy. We had earlier on the amendment proposed by Bulgaria here. Kalina Krumova, an MP from the Ataka Party and a mover of the surrogacy bill had stated the bill is much required to be passed in view of the plunging population and absence of such a bill might lead to developing of a black market for surrogacy. At the moment, Bulgarians take up international surrogacy.

Update on Bulgaria Surrogacy Bill

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Bulgaria is now making moves to amend its laws to allow surrogacy. We had earlier on the amendment proposed by Bulgaria here. Kalina Krumova, an MP from the Ataka Party and a mover of the surrogacy bill had stated the bill is much required to be passed in view of the plunging population and absence of such a bill might lead to developing of a black market for surrogacy. At the moment, Bulgarians take up international surrogacy.

Update on Bulgaria Surrogacy Bill

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Bulgaria is now making moves to amend its laws to allow surrogacy. We had earlier on the amendment proposed by Bulgaria here. Kalina Krumova, an MP from the Ataka Party and a mover of the surrogacy bill had stated the bill is much required to be passed in view of the plunging population and absence of such a bill might lead to developing of a black market for surrogacy. At the moment, Bulgarians take up international surrogacy.