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.

Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.

Some of the observations of the Family (Surrogacy) Act 2009 –

  1. Commercial surrogacy arrangement  continues to remain illegal and is considered an offence.
  2. The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
  3. The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
  4. The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
  5. However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
  6. There is no legal requirement for the intended parents to have a genetic connection with the child.
  7. The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
  8. Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
  9. The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
  10. The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
  11. Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
  12. Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
  13. The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.

Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.

Some of the observations of the Family (Surrogacy) Act 2009 –

  1. Commercial surrogacy arrangement  continues to remain illegal and is considered an offence.
  2. The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
  3. The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
  4. The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
  5. However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
  6. There is no legal requirement for the intended parents to have a genetic connection with the child.
  7. The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
  8. Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
  9. The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
  10. The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
  11. Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
  12. Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
  13. The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.

Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.

Some of the observations of the Family (Surrogacy) Act 2009 –

  1. Commercial surrogacy arrangement  continues to remain illegal and is considered an offence.
  2. The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
  3. The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
  4. The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
  5. However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
  6. There is no legal requirement for the intended parents to have a genetic connection with the child.
  7. The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
  8. Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
  9. The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
  10. The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
  11. Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
  12. Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
  13. The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.

Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.

Some of the observations of the Family (Surrogacy) Act 2009 –

  1. Commercial surrogacy arrangement  continues to remain illegal and is considered an offence.
  2. The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
  3. The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
  4. The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
  5. However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
  6. There is no legal requirement for the intended parents to have a genetic connection with the child.
  7. The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
  8. Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
  9. The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
  10. The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
  11. Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
  12. Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
  13. The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.