A male gay couple who had taken up surrogacy in India had to undergo a traumatic period after the birth of their children majorly due to the indecorous behavior of the Surrogacy Clinic in India. One of the civil partners was from Britan and the other one was from Belgium. The couple had married in Belgium in June 2008. The couple had lived in Belgium and then in India, but after August 2011 permanently resided in the UK.
The couple desired to start a family of their own and looked for a surrogacy clinic in India for about 6 months. After due research, the couple chose Kiran Infertility Clinic, Hyderabad from out of six other surrogacy clinics in India during 2010. The couple had several rounds of discussion with the Director of the Clinic and strangely were told that the clinic’s policy, ‘in line with the professional guidance in India’, does not allow the intended parents to meet the surrogate mothers. However, the couple went forward and the clinic arranged for a surrogate mother. The embryos were made out of the male gametes of the one of the partners and an anonymous Indian Egg Donor.
In September, a lengthy surrogacy agreement was drawn. A total sum of about USD $ 22,000 was to be paid to the clinic in several installments with an additional $5,000 in the eventuality that the surrogate gave birth to twins. In October 2010 the embryos were transferred into the womb of the surrogate mother. The surrogate mother tested positive for pregnancy and was carrying twins.
During early 2011, the couple approached Director of the clinic, seeking information on post-birth procedures for taking the child back to UK. However, there was no actual information from the clinic. On 8th June 2011 shortly before the expected date of delivery, the couple received a mail from the Clinic that consent has to be obtained from the Surrogate Mother after six weeks of delivery of the child. The mail also stated that the time period could be shortened to 3-4 weeks depending on the surrogate mother. The couple had earlier obtained an opinion from a U.K. Surrogacy Law Firm and found this inconsistent with their opinion. The solicitor representing the couple wrote to the Clinic Director, proposing that a document shall be drafted by their law firm and that document be read out to the surrogate in her local language and it be signed before a Notary after six months from the date of birth of the children. The Clinic Director accepted to such an arrangement.
On 14th June 2011, the surrogate gave birth to twin boys and the couple took full responsibility of the children. The couple then took the boys to New Delhi for applying for passport before the British High Commission.
Later, the surrogate mother had given a signed declaration that the complete compensation of Rs.3,50,000/- (Rupees three lakhs and fifty thousand only) had been paid to her and there is no further claim from the couple. She also relinquished her rights over the child. However, this declaration was given prior to completion of six weeks from the date of birth of the children.
On 26th July 2011, the couple e-mailed to the Director of the Clinic the relevant forms that were to be signed by the Surrogate Mother for applying for parental order. The surrogacy clinic kept delaying the process and couple failed to obtain the signed forms from the surrogate mother.
On 24th August 2011, the Indian authorities issued an Exit VISA and the couple flew to United Kingdom with the boys. The clinic had not provided the completed form from the surrogate even at that stage. This was followed by persistent querying for the signed form from the surrogate mother.
Later the couple wrote a long letter to the Clinic Director that a formal complaint should be launched if the documents were not produced within a set deadline. On 16th September 2011, the applicants received a DHL package, purportedly from the Director of the clinic, containing a single sheet of paper on which was printed an obscene gesture. The couple being helpless, tried to trace the surrogate mother, but did not do so, being concerned about invading her privacy.
On 12th December 2011, the couple filed an application for parental order before Portsmouth County Court. The court directed for CAFCASS Report and the report recommended that a parental order be given without the consent of the Surrogate Mother which has to be given after six week following birth of the child. The matter was transferred to High Court after a brief hearing for further analysis, on the effect of absence of such consent from the surrogate.
Following this, an enquiry agent was appointed by the couple, who submitted a report that the surrogate mother was not traceable. On recognizing this, the Court instructed CAFCASS legal to act as advocate of the Court on deciding the matter.
The Court framed the following issues to decide the application made by the couple:
(a) Whether the twins were carried by a woman as a result of placing in her an embryo and that gametes of one from the couple had been used for creation of the embryos.
(b) Could the Court dispense with the requirements of obtaining the consent from the surrogate mother following six weeks from the date of birth on the ground that her location could not be traced?
(c) Should be Court authorize the payments retrospectively in this case?
The Court answered the above issues as follows:
The Court had decided without hesitation that the embryos were genetically related to one from the applicant couple. Moreover, the Court did not even require the DNA evidence and was convicted with the similarity of features of the children and father merely based on photo submitted by the couple.
The most important part of the decision is ratio-decidendi concerning the absence of a consent from the surrogate mother obtained from her six weeks after the birth of the child. On that account, the court emphasized on the importance of the parental order and that of the surrogate mother. The observation of the Court has been extracted as follows:
25. It is a very important element of the surrogacy law in this country that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child. The reasons for this provision are obvious. A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world. She is a ‘natural parent’ of the child. As Baroness Hale of Richmond observed in Re G (Children)  UKHL 43, at paragraphs 33-35,
“there are least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant in this child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child …. The second is gestational parenthood: the conceiving and bearing of the child….The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs…. ”
So far as gestational parenthood is concerned, Baroness Hale observed (at paragraph 34) that the fact that in English law the woman who bears the child is legally the child’s mother ‘recognises a deeper truth: that the process of carrying a child and giving him (which may well be followed by breastfeeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.’
25. The act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life. It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give consent to the parental order. That is why the law requires that a period of six weeks must elapse before a valid consent to a parental order can be given.
Further, the Court was convinced that the couple had taken all reasonable steps to obtain the surrogate consent, but was however unable to do so. The Court observed that “the couple had reported complete trust on the agent/clinic and expected that they would behave responsibly, but it seems that the couple and the twins have been let down very badly.”
The Court held that very little importance could be given to the consent obtained from the surrogate mother before six weeks from the date of birth of the children. However, taking the welfare of the children to be paramount consideration, the Court held that the agreement/consent from the surrogate mother is not required as she could not be traced.
The court also held that the payment made to surrogate mother would be given retrospective authorization. With the above observations and consideration, the parental order was granted in favour of the Gay couple for the twin children.
Though the surrogacy arrangement is initiated mainly due to emotional thrust, the other precautions should not take a back seat and every step has to be taken for completion of paper work and documentation well within the period while the surrogacy agreement is in force.
The full decision is available here.