Surrogacy in India

German Couple all set to take twins to homeland

Hari Ramasubramanian — Sat, 29 May 2010 15:01:28 +0000

The German Couple who had a tiring journey through the Indian Judicial System in a bid to travel back to their homeland with the twin children finally have crossed the first step. The German Government had granted VISA for the children to be brought to Germany. The Central Adoption Resource Agency (CARA) had earlier agreed that it would issue a No Objection Certificate for the adoption of the children. With what can be seen, the children have to be adopted (or something similar) by the German Couple in Germany. The Union of India had given the Exit Permit for the children to be taken to Germany.

The children remain stateless yet. The Union of India had only granted the Exit Permit to the children and not a citizenship. I do not see a change of scenario as far as nationality is concerned. However, the change in attitude of the German Government is seen by issuance of the VISA. The German Couple now have an opportunity to fight for their rights at judicial forums in Germany for the citizenship of the children. The German Government had always remained steadfast to its view that familial ties arising out of a surrogacy agreement cannot be valid in law. German Government was also very precautious that the Jan Balaz’s case should be a precedent for other Germans to take up surrogacy abroad.

The German Couple may be required to adopt the twin children in Germany. This would pave way for the twin children to obtain German Citizenship. However, the Balaz Family has percolated through the first step with the guidance and aid of the Supreme Court of India.

When the appeal was filed before the Supreme Court of India, the court did not have much in its hands as the issue largely involved the policy of two states, Germany and India. Germany and India had conflicting policies with regard to surrogacy.

India was unable to grant citizenship to the twins born through surrogacy. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be Indian Citizens at the time of birth of the child. In the case on hand the children did not have an Indian National Parent. The contention of the German Couple was that the children born to an Indian surrogate mother using the gamete from an Indian anonymous egg donor is India; and that the surrogate mother was required to be regarded as the legal mother of the children. This contention had got the sympathetic eyes of the High Court of Gujarat, which agreed that the surrogate mother should be regarded as the legal mother of the child. The Gujarat High also directed the Union of India to grant citizenship and passport for the children enabling them to travel abroad.

The scenario took a complete change when the Union of India rushed to the Supreme Court of India challenging the verdict of the High Court of India. The Supreme Court of India seemed unmoved by the plea of the German Couple. The Solicitor General had time again stood stead fast to his argument that children born to a surrogate mother cannot be provided with Indian Citizenship.

I personally feel that the arguments which could have strengthened the stand of Union of India, but which was not presented is as follows:

(a) The Supreme Court of India in its earlier decision of Baby Manji (Japanese baby) held that the surrogacy agreement is valid in law.

(b) Any basic surrogacy agreement is required to contain the clause that the surrogate mother relinquishes her rights over the child, which is born to her.

(c) The surrogacy agreement has to be enforced by a court of law. In the absence of any law to the contrary, the surrogacy agreement should control the conduct of the parties and a contrary view cannot be taken.

(d) Where the court takes an opinion, which is unfounded in law and in the surrogacy agreement, it would amount to legislating of a new principle.

(e) Concluding, in absence of law to the effect that the surrogate mother is the legal mother of the child, the court cannot bring out this new theory.

(f) India does not have a legal mechanism whereby the parental rights of the surrogate mother would be transferred to the intended parent.

However, the above argument was not presented before the Supreme Court of India in support of the Union of India.

The Supreme Court of India successfully guided the German Couple through the legal maze. The Supreme Court of India had also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justices G.S. Singhvi and C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard.

Times of India writes on Surrogacy

Hari Ramasubramanian — Tue, 18 May 2010 05:42:05 +0000

Times of India writes on Surrogacy in India and also discusses the work handled by Indian Surrogacy Law Centre. The need for risk assessment for international intended parents who come down to India has been the focus. The link to the article is http://timesofindia.indiatimes.com/India/Surrogacy-goes-into-labour-/articleshow/5934825.cms.

CARA agrees to provide No Objection Certificate in the Jan Balaz case

Hari Ramasubramanian — Tue, 04 May 2010 06:03:00 +0000

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.

Legal Audit and Risk Assessment

Hari Ramasubramanian — Mon, 12 Apr 2010 07:26:12 +0000

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 constitutes committee for reviewing Third Party Reproduction for Gay Couples

Hari Ramasubramanian — Thu, 01 Apr 2010 07:16:25 +0000

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.”

No related posts.

Bulgaria to amend its laws to allow Surrogacy

Hari Ramasubramanian — Thu, 01 Apr 2010 06:32:32 +0000

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.

No related posts.

French Court holds IP to be legal parents, but not for nationality

Hari Ramasubramanian — Fri, 19 Mar 2010 13:03:59 +0000

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.

Supreme Court of India directs CARA to consider adoption plea in German’s Surrogacy Case

Hari Ramasubramanian — Wed, 17 Mar 2010 09:14:29 +0000

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.

AFP writes on surrogacy by gay couples in India

Hari Ramasubramanian — Sat, 13 Mar 2010 11:59:15 +0000

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

Jan Balaz case

Hari Ramasubramanian — Thu, 25 Feb 2010 10:13:19 +0000

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.