julie-bishopAustralian Foreign Minister Julie Bishop who is currently in India has made a statement to the Australian Media that the Consular Officials in Delhi who handled the case of an Australian Couple who left behind one of the twins born through surrogacy in India, had “acted professionally”. The context of the statement is unclear, though it can presumed that the statement is only a press-release. India-Australia have not opened a dialogue on this issue yet.

The stand of the Australian Foreign Minister is that the application for Australian Citizenship was received for only one child and the twin had no application for Australian Citizenship. The role of Australian Embassy, according to the Australian Government, is “limited” as the child was not a citizen of Australia.

The Australian Foreign Minister had stated to the Australian Broadcasting Corporation that the other child left in India was “a matter for the Indian authorities as it always was”.

The response by the Australian Government/Foreign Minister can be rather termed insensitive. The identity of the couple has not been disclosed and the location, status and welfare of the child is unclear. The Australian High Commission had in fact wired to the Australian Government in Canberra that the adoptive parents are not clear friends of the Australian Citizens, but are not known only through a mutual friend.

Nothing to show that the Australian Consulate informed the Indian Authorities.

Although Australia claims that the child left behind in India is only a concern of the Indian Authorities, there is nothing to show that the Australian Consulate had informed any Indian Authority about the child being left behind in India. The alleged “adoption” cannot have taken place unless the child is actually a citizen of India. The child cannot be accorded an Indian citizenship as the child was genetically unrelated to an Indian Legal Parent.

Interest of the Child foremost importance

The primary importance must be given to the interest of the child. The Australian Government must ensure that the identity of the couple is disclosed and that the child is presently in safe hands. When the Australian Government refuses to release these information, the Indian Authorities have nil information to act upon.

There is a news update from the Australian Broadcasting Corporation with regard to the abandonment of the one of the twins born through surrogacy. The ABC (Australian Broadcasting Corporation) has access to documents from the Australian High Commission in New Delhi pertaining to the one of the twins which was disowned by an Australian Couple. To know about the full facts read here.

The documents show that the Australian Consular officials had full knowledge of the case, and chose not to act against the couple. The couple had approached the Australian High Commission In New Delhi applying for citizenship for one of the children born through surrogacy. The couple have reportedly told the embassy staff that they are going to leave the boy twin in India as they wanted only the sister to complete their family and that they could not afford raising another kid. The Couple already had a boy and wanted a girl child to complete their family.

The documents show that the Australian couple misled by telling the Consular Officials that they were looking to give the boy child in adoption to a Childless couple, who are close family friends of the Australian Parent. The Consular officials later came to know that the adopting parents were actually not close family friends as claimed by the Australian Couple.

The couple had been repeatedly informed by the Australian Consular Officials in New Delhi that the boy may become stateless if the parents do not apply for Australian Citizenship for the boy by the parents. The boy was fully qualified for an Australian Citizenship, but was not granted one, as the parents chose not to apply for the same. The Australian Consulate chose not to act on the case as the boy was not an Australian Citizen.

The following are not clear:

  • The citizenship of the person who took the custody of the child
  • How can private adoption take place in India when the child does not have an Indian Citizenship?
  • Whether any monies exchanged hands as part of this “adoption”?
  • Who are these “couple” and why is the identity of the couple being kept a secret?
  • When abandonment of a child is an offence in India under Section 317 of the Penal Code, why has not filed a case against the couple yet?

China_surrogacyXinhua News Agency, the official press agency of the People’s Republic of China has come out with a press release stating that the surrogacy industry in China will be acted upon. It is claimed to be a nine-month inter-departmental action on identifying, prosecuting and punishing medical professionals and intermediary agencies that are involved in surrogacy arrangements. It is also claimed that advertisements over the media, including the internet, would also be removed and acted upon.

Chinese Government had always claimed that surrogacy was illegal in Mainland China. It has been reported in the International news media that several Chinese couples had taken up surrogacy arrangements within China. This was considered that underground operations, which were clearly illegal but the presence of which was very obvious.

I had interacted with a former client of mine few months back who had taken up a surrogacy arrangement in China. He said that surrogacy arrangements were fairly open although illegal.

I had earlier reported about Peter Lee Ka-kit being investigated by the Police for taking up surrogacy arrangement in US in 2010. He had Triplets out of the said surrogacy arrangement was reported probed by the Chinese Police for taking up of surrogacy arrangement, even though outside the country.

Chinese Couple taking up international surrogacy arrangements

It is unclear whether Chinese couple can continue taking up of surrogacy arrangement outside China. Several wealthy Chinese couple had reported taken surrogacy arrangements in the US, thereby enabling the children born through arrangement to take up Citizenship. Several Chinese couples had also taken up surrogacy arrangement in Thailand, when it was permitted. It is now unclear if the Chinese couples would be allowed to take up surrogacy arrangement out China.

There are always new ways to do things. And, this is exactly one of those.

o-LAUREN-MARCHANT-570

Photo from here- http://www.gofundme.com/phyrd4  

A Couple from United Kingdom have inspired the spirit of many childless couples wishing to take up a surrogacy arrangement with their idea to crowdsourcing a surrogacy arrangement for having their second child. Their fundraising page at http://www.gofundme.com/phyrd4 puts their story as below:

After a life saving hysterectomy for Lauren, Lauren & Ben (childhood sweethearts & newlyweds) cannot get pregnant the conventional way.
Lauren is mum and Ben step daddy to Logan (3) but are desperate to have a child together so are hoping to raise enough money to be able to go through surrogacy. At a massive £20,000 they are struggling with the last hurdle
With savings already and Ben volunteering to go away with work (british army), they are hoping to raise the extra money to fulfill their dreams as a couple, to have Bens first biological child.
The NHS are non receptive, as Lauren has logan, but for Ben they wish there was more that could be done to help.
Thank You for your time,and any donations possible.

Lauren & Ben

A child is a basic need of any family and many people are unable to have a child due to their reproductive disability. The advancement of science has made this a possibility, but what stands in the way is the money. Crowdsourcing has changed the lives of many, in many different ways. I sincerely hope crowdsourcing could this family too.

Sometime in September 2014, Thailand’s newly formed military government had vowed to ban commercial surrogacy after facing a series of issues with international commercial surrogacy arrangements. (http://blog.indiansurrogacylaw.com/thailand-to-ban-surrogacy/)

The first came the Gammy Case where the intended parents from Australia had abandoned one of the twins born through surrogacy as the child had down-syndrome. Then came the case of a Japanese man who had about 16 children through surrogacy. The Thailand military rule had then come up with a crack down against the illegal surrogacy clinics which had been performing commercial surrogacy illegally. Thailand Kingdom then announced that commercial surrogacy was never legal in Thailand and all surrogacy arrangements in Thailand were illegal. It can be recalled that several of the intended parents who had children through surrogacy had difficulties in taking back the child born surrogacy.

Now the Thailand Parliament had passed a legislation banning commercial surrogacy, making it illegal for foreign couples to take up a surrogacy arrangement with a Thai surrogate mother. This ban is applicable for all foreign nationals and same-sex couples.

It is informed that only altruistic surrogacy would be allowed, and that too only for Thai married heterosexual couples. The surrogate mother must be atleast 25 years of age. It is informed that the surrogate mother must be only a relative of the husband or the wife of the intended parents. Also, advertisement or promotion of surrogacy services is now banned.

After India banned commercial surrogacy for same-sex couples through VISA regulation, Thailand was the most sought after for commercial surrogacy. With the ban of the commercial surrogacy in Thailand, the number of nations that allow commercial surrogacy is foremost limited to certain states of USA and certain less known countries like Ukraine.

The Bangalore Nandhi Layout Police had launched a case against one Mr. K T Gurumurthy on charges of child trafficking, and kidnap and sale of newborns based on a complaint by one of his clients. K T Gurumurthy is running Srushti Global Trust in Basaveshwarnagar, Bangalore.

Gurumurthy claims himself to be fertility specialist and embryologist. He had promised one of clients, Dhan Bosco to arrange a surrogate mother for Rs. 3,50,000 so that the couple could have a child genetically related to them. Dhan Bosco had provided his sperm sample in the year 2008. After about 7 months Gurumurthy informed the couple that a girl child is born to them. Gurumurthy did not justify the early birth of the child.

The child had later suffered some ailments. Depressed over the illness of the child, the wife of Dhan Bosco passed away. Dhan Bosco then took a DNA test which showed he is not genetically related to the child. It is then he learnt Gurumurthy had cheated him. Aggrieved by this, he approached the police authorities and charged with kidnap and trafficking of the new born for the purpose of sale, cheating, threatening and criminal intimidation.

Gurumurthy is currently facing another prosecution on charges of cheating childless couples, after promising them IVF treatment. The earlier was launched in January 2014. Gurumurthy is now under police custody for a week’s time.

This come right in the time when an Australian couple had abandoned a child born through surrogacy in India, while taking its twin.

 

An Australian Couple have reportedly abandoned a child born through surrogacy in India, while taking one of the twins home. The revelation was made by Australian Chief Justice of the Family Court, Diana Bryant in a family law seminar in Australia this week.

The incident reportedly took place in 2012. An Australian Couple had taken up a surrogacy arrangement in India and it had resulted in the birth of twin children. The Australian Couple had chosen to take only one child born through the surrogacy arrangement, while deciding to abandon the other twin. The Officials at the Australian Consulate had knowledge of this decisions and have reportedly tried persuading the couple against it. Also, an Australian MP is said to have pressured the Australian High Commission to allow the Couple to take only the baby of the couple’s choice. The couple had already one child before the surrogacy arrangement, and they wanted only one child of the opposite sex. It is not revealed which gender the couple had chosen. Also, another person claiming to be friend of the Australian Couple seems to have taken custody of the child, while it is not clear if the claim is true and if there was any commercial interest.

This shocking news follows the Thailand Baby Gammy news, where another Australian Couple had taken up surrogacy in Thailand and had deserted one of the twin children, as the child was affected by down-syndrome.

Abandonment of a child is an offence in India

Abandonment of a child is punishable under Indian Law under Section 317 of the Indian Penal Code, 1860. The relevant provision is extracted hereunder:

317. Exposure and abandonment of child under twelve years, by parent or person having care of it.—Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.

If the facts as provided are true, the acts of abandonment of the child by the Commissioning Couple clearly fall within the above provision of law, which warrants 7 years of imprisonment. The Australian Commissioning Couple have initiated the surrogacy arrangement, but have chosen to take custody of only one child and abandon the other. The mere act of abandoning the child is clearly an offence.

Australian High Commission must have acted

The Australian High Commission is said to have full knowledge of the fact that the couple are trying to abandon one of the twins born through surrogacy. As is prudent to any logical reasoning, the Australian High Commission must have informed the Indian Authorities about this issue and must have taken steps to have registered a case with the local police about the act, rather than merely trying to orally persuade the couple.

I am not sure which State in Australia the couple reside. But almost every state law in Australia would have a provision which makes the act of abandoning a child an offence. The couple would be liable to prosecution in Australia also.

Welfare of child undermined

There is no doubt that the welfare of the children has been undermined. It is unbelievable that the officials who had knowledge of the information have failed to inform the Indian or Australian Authorities. Abandonment of children and possible trafficking of children is a very serious allegation. Reckless, but intentional, decision by the commissioning parents clearly makes them unfit to be good parents for a child.

Need for International Intervention in Cross Border Surrogacy Arrangements

In every surrogacy arrangement, a new life is brought into being only on the instance of a couple who wish to have a family. The act of the Australian Couples, be it Baby Gammy or the Indian Case, is even unimaginable and inhuman. The Hauge Conference is exploring the possibility of having a convention on international surrogacy arrangement. Such an effort is most required to deal these scenarios with iron hands. The international community must come forward to ensure that this act is never repeated.

The BBC Tamil Interview on Australian Couple who have deserted a child born through surrogacy in India:

//

One interesting question that was posed was whether the surrogate mother can compel the couple to take the child in case they refuse. I forgot to mention Section 317 of the Indian Penal Code, 1860. However, I am covering it in the next blog post.

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.