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/
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.