UK India surrogacyA 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) [2006] 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.

Ministry of Home Affairs declares that appropriate visa category for Intended Parents for traveling to India for surrogacy is medical surrogacy visa.

I have finally heard from the Ministry of Home Affairs (Foreigners Division) pertaining to RTI Application filed by me dated 10.07.2012 on the surrogacy VISA category. From the reply, I see that the Ministry of Home Affairs had addressed a letter to dated 09.07.2012 bearing File No.25022/74/2011-F-1, laying down the procedure for grant of VISA for foreign nationals, intending to visit India for surrogacy arrangements. Interestingly, the communication has been dated 9th July 2012, just one day prior to the date of my Right to Information Application. However, the notification pertaining to surrogacy has been on the websites of the Indian Embassies for almost six months now.

The following instructions were issued to the Ministry of External Affairs and requested to be circulated to all Indian Missions abroad as per the communication in File No.25022/74/2011-F-1.  It is stated in the reply to RTI Application that the Home Affairs Minister has approved the Guidelines issued by the Ministry of Home Affairs. This is the basis on which the warning about surrogacy arrangements had been published in the websites of the Indian Embassies.

Surrogacy neither allowed or prohibited by Home Ministry

The Ministry of Home Affairs has not issued any guidelines either allowing or prohibiting surrogacy in India.  However, Ministry of Health and Family Welfare is the nodal Ministry in this regard.

Medical Surrogacy VISA requirements

The VISA category required for taking up surrogacy arrangement is medical surrogacy VISA.  A medical surrogacy VISA for surrogacy arrangement could be granted on the fulfillment of the following conditions:

a)    The foreign man and woman are duly married and the marriage should have sustained at least for two years.

b)    A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Medical Surrogacy VISA application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.

c)     The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.

d)    The treatment should be done only at one of the registered ART clinics recognized by ICMR.  (The list of such clinics will be shared with MEA from time to time)

e)    The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.

If any of the above conditions are not fulfilled, the surrogacy visa application shall be rejected.

Further, before the grant of surrogacy visa, the foreign couple needs to be told that before leaving India for their return journey, ‘Exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indiansurrogate mother have been fully discharged as per the agreement.  A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and surrogacy visa of the foreign parents.

However, the couple may visit India on a tourist VISA for executing the agreement on a reconnaissance trip, but no samples may be given to any clinic during such preliminary visit.

MHA-docs Ministry of Home Affairs on indian surrogacy visaCopy of the Notification issued by Ministry of Home Affairs on Surrogacy VISA 

MHA-docs2 MHA-docs3 MHA-docs4

In summary, a commissioning couple seeking to take up surrogacy in India can sign a surrogacy agreementin a tourist VISA, but cannot provide samples to the clinic when they are in a tourist VISA. Further, the medical VISA would be granted only when the surrogacy agreement is submitted as annexure document along with the application. That means that the couple has to travel twice prior to taking up a surrogacy arrangement. Once for meeting with clinics and signing of the surrogacy agreement; and again for providing samples to the clinic. It certainly seems strange.

The Ministry of Home Affairs by its communication dated 23rd July 2012 transfers the application partly to the Ministry of External Affairs. It could be noted here that the Ministry of External Affairs had brushed aside the RTI Application earlier made to them pertaining to the publication of surrogacy notification in the websites of the Embassies and failed to provide any information pertaining to the same. The post pertaining to failure to disclose information is here. It would be interesting to witness if the Ministry of External Affairs discloses information pertaining to the publication of the Surrogacy Notification in the websites of the Indian Embassies and Consulates.

 

Question 21 of the RTI Application related to the number of Exit VISA stamping done for cases of surrogacy. The Ministry of Home Affairs had transferred the particular question to the all the State Governments, Union Territories and the Foreigners Regional Registration Officers (FRROs).

 

 

Egg donorSushma Pandey was an egg donor, who had visited a Mumbai Hospital for donating her eggs in the month of August 2010.  Two days after the procedure, the egg donor had complained of abdominal pain and had succumbed to death on 9th August 2010.

The investigation on the death of egg donor revealed a far larger story. Sushma Pandey was only 17 years of age when she had undertaken the procedure of egg-donation.  Even more surprising fact was that it was the third time she had acted as an egg donor within a period of three months and she had been acting as an egg donor from the age of 16.

The PAN Card Identity Proof of Sushma had been manipulated and contained incorrect details as per the hospital.  The hospital states that her PAN card stated her age as 19 at the time of admission in August 2010.

The police had booked the man who had accompanied Sushma to the Hospital, Samanullah alias Shanu.  It is unclear, what are the charges he was booked under.  It is also unclear whether the man had been discharged from the case.

From Media Report, I could gather that the Bombay High Court has pulled up the police for not probing the role of the ‘Rotunda – the Centre for Human Reproduction’ Hospital in Bandra where Sushma had undergone the medical procedure. It is learnt that Sushma had visited the Rotunda Hospital in February 2009, October 2009 and February 2010.  The incident took place in August 2010, when Sushma had donated her eggs for the third time.

The ‘Rotunda – the Centre for Human Reproduction’ is a known surrogacy hospital providing packages for intended parents from abroad and within India. However, this is the first time that the incident has come to light. Even in this case, the police have not investigated the role of the ‘Rotunda – the Centre for Human Reproduction’ in the incident. The eggs that have been harvested from Indian Egg Donors are being put to use for Indian and Foreign Couples who are unable to produce quality eggs.

The matter had come up for hearing before the Bombay (Mumbai) High Court on an application filed by Samanullah who had accompanied the egg donor to the hospital. Justice R C Chavan observed “Curiously, the chargesheet does not show that the investigating machinery had proceeded against Rotunda Hospital, which has a record of the victim being an egg donor on three occasions prior to the unfortunate incident, in flagrant violation of the requirement that such a donor has to be between the ages of 18 years and 35 years, when the victim was only 17 years on the last occasion… and she had been donating eggs for at least one-and-a-half years before this.”

The Post mortem report indicates that there was one abrasion, four contusions and a blood clot in the head, plus six injection marks. It is reported that the Bombay High Court noted – the probable cause of death, certified by the doctor, was shock possibly due to such multiple injuries and that the Histopathological Report showed some congestion in the ovaries and uterus.

Sushma’s family refutes any knowledge that their daughter had acted as an Egg Donor ever. None of her family members have accompanied the minor egg donor during the time of the procedure.

Chapter 3 of the ICMR guidelines state that the Oocyte donor should not be less than 21 years of age and more than 35 years of age.  Further, an Assisted Reproductive Technology Clinic cannot establish an Egg Bank or a Sperm Bank.  If an ART Clinic establishes an egg bank, the same should operate as a separate entity and not as part of the hospital. As per the guidelines, only law firms or independent entities can establish a gamete bank.

The Indian Council for Medical Research intends and stipulates a clear demarcation of scope of operation between an egg bank and Assisted Reproductive Technology clinics.  However, Assisted Reproductive Technology Clinics in the country seldom follow such clear exclusivity in operations.

This is not the first time that the wild side of the fertility industry in India has come to light. Indian fertility certainly has now outgrown in proportions and a regulation by way of legislation is much felt. Though much debate had taken place at various forums, there has been no actual improvement or movement in legislating the Assisted Reproductive Technology (Regulation) Bill.

I had written to the Indian Embassy in Beijing, China seeking information under the Right to Information Act, 2005 over the notification published by the Indian Embassy in their website (http://www.indianembassy.org.cn/DynamicContent.aspx?MenuId=59&SubMenuId=91). The material published in the website is with regard to the new Surrogacy Visa introduced by the Ministry of Home Affairs.

The following are the contents that have been published:

Notice regarding visa to India for the purpose of entering into surrogacy arrangements

Any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangements under any other visa not sought for surrogacy is punishable under Indian law.

I had received a reply on the 25th July 2012 providing answer to my reply. The following is the relevant extract from the reply received from the Indian Embassy:

  • The above quoted contents were published on the Embassy’s website in pursuance to instructions received from Ministry of External Affairs.
  • The contents are regulatory in nature.
  • The intent of publication of the above content is to protect interest of the child born as a result of surrogacy and to ensure that he/she can be taken to the country of the parents commissioning surrogacy.
  • GoI instructions as stated in Para 4 above.
  • Medical Visa is the appropriate visa for the purpose.
  • Copies of the document cannot be provided as they are classified in nature.
  • The following documents are required for the visa for the mentioned purpose :-

a)    Document to substantiate that the couple commissioning surrogacy are married for more than two years.

b)   Letter from the concerned embassy stating that their law recognizes surrogacy and that the child born to the couple through the Indian surrogate mother will be permitted entry into their country as biological child of the commissioning parents.

c)    Undertaking from the couple that they would take care of the child.

d)   Copy of agreement between surrogate mother and the commissioning couple.

e)    Letter from one of the ART Clinics recognized by ICMR, where treatment is to be done.

  • Since the documents are classified, the same cannot be provided.
  • As per available records, no visa application has been received mentioning purpose of visit as “Surrogacy” in Embassy of India, Beijing.
  • For the purposes of drawing up and executing the agreement mentioned at 11 (d), a foreign couple can be permitted to visit India on a reconnaissance trip on tourist visa but no samples should be given to the clinic during such preliminary visit.

SURROGACY RTI REPLY china1 SURROGACY RTI REPLY china2

I made a RTI application to Ministry of Home Affairs seeking information on the basis on which VISA for surrogacy arrangements in India is granted for foreigners. The application made to the Ministry of External Affairs was not fruitful and no information was provided over the application. The questions in the RTI application to the Ministry of Home Affairs were:

INSTRUCTIONS FOR VISA FOR SURROGACY ARRANGMENTS

This is to bring to notice that any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of his/her country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law.

Please note that we had filed an RTI Application asking the following questions to the RTI Cell, ‘Ministry of External Affairs”.  The Consular, Passport and Visa Division of the Ministry of External Affairs by its letter of 28th June 2012 have replied that ‘Visa Policy and Visa Rules are formulated by the Ministry of Home Affairs (Foreigner Division).’  Hence, I kindly seek information on the following questions;

  1. What are the legal circumstances on which the said notice has been published in the Embassy Website?
  2. Please provide copies of rules/regulation/Gazette notification/legislation by which the above-mentioned notice has been published in the website of the Embassies/High Commission of India.
  3. Under which rule/regulation/Act the said notice was published in the website of the Embassy?
  4. Who is the authority who recommended/caused the publication of the said notice?
  5. Please provide the certified copy of the official communication from the Authority recommending/causing the publication of the said notice in the website of the Embassy and/or Official Gazette.
  6. Which Authority approved the publication of the said notice? Please provide certified copies relating to the Approval, if any.
  7. Which authority approved the publication of the said notices in the websites of the embassies? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  8. What is the general procedure to be adopted for approving and publishing a similar notice/advisory in the website of the Embassies/High Commission of India? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  9. Has the procedure specified in Question 8 been followed for the publication of the notice?
  10. Which Act /Rule/ Regulation governs the approval and publication of any notice /website in the Embassies of India located abroad.
  11. Which Department in M.E.A. is in-charge and responsible for the drafting of the contents in the website of the Embassy?
  12. Whether there is any Rule/ Regulation/Legislation/Regulation allowing or prohibiting surrogacy in India for foreign nationals?
  13. Which category of VISA is required to be applied for taking up surrogacy in India by foreign nationals?
  14. What is the procedure for obtaining the VISA for taking up surrogacy arrangement in India? Please furnish copies of the related Rule/ Regulation/Legislation/Notification pertaining specifically for VISA for surrogacy procedure in India.
  15. What are the supporting documents/certifications required to apply for the VISA for surrogacy procedure in India?
  16. If any letter is required from any Government/autonomous agency of the country of the Foreign National.
  17. If the answer to question number 17 is in affirmative, what should such letter/Certification contain for the satisfaction of the Indian authorities when applying for VISA for surrogacy procedure in India?
  18. If any letter/certificate is required from any Government agency/authority for obtaining VISA for surrogacy procedure in India, and if the Government Agency/Authority is failing to provide such documentation/certification, what other documentation would be required to be submitted?
  19. If any documentation is required, which Rule/Regulation/Legislation/Gazette Notification etc stipulates that foreign intended parents seeking surrogacy in India have to provide such documentation as stipulated in Question 16 above.
  20. How many VISA applications have been received till date where the applicants have stated “surrogacy” as their purpose of visit? Please specify the origin country, category of the VISA applied for, Year wise Split-up and the result of such applications.
  21. Till date, how many “EXIT VISA stamping” have been done for children born through surrogacy in India? Please provide year-wise split-up along with the records on the citizenship of the child/applying parents wherein application for EXIT VISA stamping has been received.

Few of my colleagues at the American Bar Association had expressed concern over the changing circumstances for surrogacy in India. The Indian Embassies in various countries have published the following notification stating that there is a special category of visa called the “Surrogacy VISA.” However, there is no clarity from the embassy as to what are the requirements for obtaining the new VISA. The basis on which the new VISA category has come into force is a matter of question as there is no special legislation on surrogacy in India.

 

SURROGACY

Any person seeking a visa to India for purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law.

INSTRUCTIONS FOR VISA FOR SURROGACY ARRANGMENTS

This is to bring to notice that any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of his/her country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law.

Further, this notification left commissioning couple perplexed as to what are the requirements to be fulfilled to take up surrogacy in India. Without proper information from the Indian Embassies, several intended parents have been unable to satisfy the authorities on the documentation for obtaining the new surrogacy VISA. Many Indian Embassies also required specific letter from the Government which states that surrogacy is recognised in their country and that the country would allow the child born through surrogacy back into their nation. This proves challenging as no Government would provide such a letter at a preliminary stage and grant of citizenship for children born abroad allows depends on the circumstance surrounding the birth.

I had taken the initiative to investigate over this matter and sought clarity over the regulations based on which such notifications have been issued. As part of the initiative, I wrote to  Ministry of External Affairs and various embassies that have published such Notification as the above.

 

The questions posed to the Ministry of External Affairs are as follows:

  1. What are the legal circumstances on which the said notice has been published in the Embassy Website?
  2. Please provide copies of rules/regulation/Gazette notification/legislation by which the above-mentioned notice has been published in the website of the Embassies/High Commission of India.
  3. Under which rule/regulation/Act the said notice was published in the website of the Embassy?
  4. Who is the authority who recommended/caused the publication of the said notice?
  5. Please provide the certified copy of the official communication from the Authority recommending/causing the publication of the said notice in the website of the Embassy and/or Official Gazette.
  6. Which Authority approved the publication of the said notice? Please provide certified copies relating to the Approval, if any.
  7. Which authority approved the publication of the said notices in the websites of the embassies? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  8. What is the general procedure to be adopted for approving and publishing a similar notice/advisory in the website of the Embassies/High Commission of India? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  9. Has the procedure specified in Question 8 been followed for the publication of the notice?
  10. Which Act /Rule/ Regulation governs the approval and publication of any notice /website in the Embassies of India located abroad.
  11. Which Department in M.E.A. is in-charge and responsible for the drafting of the contents in the website of the Embassy?
  12. Whether there is any Rule/ Regulation/Legislation/Regulation allowing or prohibiting surrogacy in India for foreign nationals?
  13. Which category of VISA is required to be applied for taking up surrogacy in India by foreign nationals?
  14. What is the procedure for obtaining the VISA for taking up surrogacy arrangement in India? Please furnish copies of the related Rule/ Regulation/Legislation/Notification pertaining specifically for VISA for surrogacy procedure in India.
  15. What are the supporting documents/certifications required to apply for the VISA for surrogacy procedure in India?
  16. If any letter is required from any Government/autonomous agency of the country of the Foreign National, what should such letter/Certification contain for the satisfaction of the Indian authorities when applying for VISA for surrogacy procedure in India?
  17. If any letter/certificate is required from any Government agency/authority for obtaining VISA for surrogacy procedure in India, and if the Government Agency/Authority is failing to provide such documentation/certification, what other documentation would be required to be submitted?
  18. If any documentation is required, which Rule/Regulation/Legislation/Gazette Notification etc stipulates that foreign intended parents seeking surrogacy in India have to provide such documentation as stipulated in Question 17 above.
  19. How many VISA applications have been received till date where the applicants have stated “surrogacy” as their purpose of visit? Please specify the origin country, category of the VISA applied for, Year wise Split-up and the result of such applications.
  20. Till date, how many “EXIT VISA stamping” have been done for children born through surrogacy in India? Please provide year-wise split-up along with the records on the citizenship of the child/applying parents wherein application for EXIT VISA stamping has been received.
I await to hear from the Ministry of External Affairs and the Embassies on this drive to obtain information on international commercial surrogacy in India.

 

This is the update pertaining to the French case of Dominique Mennessan and Sylvie. The earlier post on the decision of the Court of Appeals is here.

The Supreme Court of France, which is the highest judicial forum in France, (Court of Cassata) had turned down the application by the couple for inclusion of the names of their twin daughters in the French registry. The twins were born ten years ago through surrogacy in the month of October 2000.  Isa and Leah have a birth certificate indicating that American parents are Menesson, but the French Government challenged transcription of these documents. The couple is fighting, since the birth of twins, for that French law recognizes their parentage.

The couple has been struggling for 10 years with the legal procedures for including the names of twin children in the French registry.  The Court of Appeal, too, had not recognised the children to be French citizens. The children were born to an American surrogate mother, Mary.  She gave birth to Isa and Leah from the embryos created from sperm from Dominique and the egg from a friend.

France does not allow surrogacy, practice to be carried by another woman, for a fee, an embryo conceived in vitro. In this case, the embryo has been conceived with sperm from the joint French, Dominique Menesson, and the oocyte from a friend of the couple. Dominique, the husband, however retains a recognition of parentage of their child through official documents issued in the United States.On the birth of the twin children, their birth certificates were prepared in accordance with the Californian Law.  The couple have been considered to be the legal parents as per the United States authorities, but not by the French authorities.

In France, the woman who gives birth to the children is considered to be the legal mother of the child.  This being so, French Law does not recognize surrogacy arrangements.  According to Court of Cassata, the father of the children, Mennessan is the legal father of the child due to the biological connection.  However, the commissioning mother, Sylvie is not considered the legal mother of the children.  For all practical reasons, the children are considered as living with two different parents.

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.

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.