Mr. Jan Balaz, the petitioner in the case pending before the Supreme Court had submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities. The case which is fast improving might soon be a happy ending.
This is one of the most frequent questions I answer during my meetings with the Intended Parents. Though the answer seems quite simple, the consequence of missing the right time to sign a surrogacy contract is quite a serious problem to the whole surrogacy program. Indian Surrogacy Law Centre recommends the right time to enter into a surrogacy contract with the surrogate is when the following four aspects have been finalized,
(a) the choice over the surrogate mother
(b) the choice over the Clinic
(c) the financial element, with regard to the compensation to the surrogate
(d) The dates for commencing the procedures at the hospital has been fixed.
Once all the above factors have been determined, it is the right time for entering into a surrogacy agreement. The surrogate should have a clear understanding of the agreement and there should be also some evidence for the same.
Importance of the time factor:
The date of signing of the surrogacy contract plays an important role is assessing the mind of the parties to the contract. It is important that the surrogate enters into the contract before the taking up of the medical procedures. The reason is that the medical procedures itself is a result of the contract entered between the parties, and this order of events cannot be rearranged. There have been cases where clinics do not stress on the need for signing of an appropriate agreement with the surrogate before carrying out the procedures. However, this practice does not serve any purpose.
More importantly, the effect of not signing of a surrogacy agreement at an appropriate time has an adverse inference over the agreement. In such cases, the obvious question the Court poses to a person who relies on the agreement is as to why the agreement was not entered with the surrogate before she had taken up the medical procedures.
Therefore it is important to have the surrogacy agreement entered by the parties before proceeding with the medical procedures.
The Decision of the First Case decided by the Supreme Court on Surrogacy has been extracted hereunder:
IN THE SUPREME COURT OF INDIA
Writ Petition (C) No. 369 of 2008
Decided On: 29.09.2008
Arijit Pasayat and Mukundakam Sharma, JJ.
Arijit Pasayat, J.
1. This petition under Article 32 of the Constitution of India, 1950 (hereinafter for short ‘the Constitution’) raises some important questions.
2. Essentially challenge is to certain directions given by a Division Bench of the Rajasthan High Court relating to production/custody of a child Manji Yamada. Emiko Yamada, claiming to be grandmother of the child, has filed this petition. The Writ Petition before the Rajasthan High Court was filed by M/s. SATYA, stated to be an NG0, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s. SATYA wherein the Union of India through Ministry of Home Affairs, State of Rajasthan through the Principal Secretary, The Director General of Police, Government of Rajasthan and the Superintendent of Police Jaipur City (East), Jaipur were made the parties. There is no dispute about Baby Manji Yamada having been given birth by a surrogate mother. It is stated that the biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. It appears from some of the statements made that there were matrimonial discords between the biological parents. The child was born on 25th July, 2008. On 3rd August, 2008 the child was moved to Arya Hospital in Jaipur following a law and order situation in Gujarat and she was being provided with much needed care including being breastfed by a woman. It is stated by the petitioner that the genetic father Dr. Ifukumi Yamada had to return to Japan due to expiration of his visa. It is also stated that the Municipality at Anand has issued a Birth Certificate indicating the name of the genetic father.
3. Stand of respondent No. 3 was that there is no law governing surrogation in India and in the name of surrogation lot of irregularities are being committed. According to it, in the name of surrogacy a money making racket is being perpetuated. It is also the stand of the said respondent that the Union of India should enforce stringent laws relating to surrogacy. The present petitioner has questioned the locus standi of respondent No. 3 to file a habeas corpus petition. It is pointed out that though custody of the child was being asked for but there was not even an indication as to in whose alleged illegal custody the child was. It is stated that though the petition before the High Court was styled as a “Public Interest Litigation” there was no element of public interest involved. Learned Counsel for respondent No. 3 with reference to the counter- affidavit filed in this Court had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain statements made in the said counter affidavit and has submitted that the petition before the High Court was not in good faith and was certainly not in public interest.
4. We need not go into the locus standi of respondent No. 3 and/or whether bonafides are involved or not. It is to be noted that the Commissions For Protection of Child Rights Act, 2005 (hereinafter for short ‘the Act’) has been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. Section 13 which appears in Chapter III of the Act is of considerable importance. The same reads as follows:
13. Functions of Commission.
(1) The Commission shall perform all or any of the following functions, namely:
(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;
(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures.
(e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;
(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;
(g) Undertake and promote research in the field of child rights;
(h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;
(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of matters relating to, –
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection and development of children;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and
(k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions
2) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
5. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.
The word “surrogate”, from Latin “subrogare”, means “appointed to act in the place of”. The intended parent(s) is the individual or couple who intends to rear the child after its birth.
6. In “traditional surrogacy” (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic. ‘
7. In “gestational surrogacy” (also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.
8. “Altruistic surrogacy” is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).
9. “Commercial surrogacy” is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
10. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.
11. Alternatively, the intended parent may be a single male or a male homosexual couple.
12. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.
13. In the present case, if any action is to be taken that has to be taken by the Commission. It has a right to inquire into complaints and even to take suo motu notice of matters relating to, (i) deprivation and violation of child rights (ii) non-implementation of laws providing for protection and development of children and (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities.
14. It appears that till now no complaint has been made by anybody relating to the child, the petitioner in this Court.
15. We, therefore, dispose of this writ petition with a direction that if any person has any grievance, the same can be ventilated before the Commission constituted under the Act. It needs no emphasis that the Commission has to take into account various aspects necessary to be taken note of.
16. Another grievance of the petitioner is that the permission to travel so far as the child is concerned including issuance of a Passport is under consideration of the Central Government; but no orders have been passed in that regard. The other prayer in the petition is with regard to an extension of the visa of the grandmother of the child requesting for such an order.
17. Learned Solicitor General, on instructions, stated that if a comprehensive application, as required under law, is filed within a week, the same shall be disposed of expeditiously and not later than four weeks from the date of receipt of such application. If the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be availed.
18. The writ petition is accordingly disposed of without any order as to costs. All proceedings pending in any High Court relating to the matter which we have dealt with in this petition shall stand disposed of because of this order.
This clipping shows the importance of a surrogacy contract. A Couple who had failed to enter into a proper, legally binding contract with the surrogate mother had to lose the court battle and the rights over the child. The Surrogacy Contract plays a very important role in surrogacy. Please click here to view the video.
Indian Surrogacy Law Centre recommends the following pointers for choosing of the right surrogate mother:
a) The surrogate needs to be a practical person who is completely aware of every possibility with regard to surrogacy. For this purpose, a proper medical and legal counselling to the surrogate would suffice in the normal circumstances.
b) The surrogate should understand that surrogacy is not a typical pregnancy procedure and there are more issues connected to it which are more complicated.
c) The surrogate also needs to understand that the possibility of conceiving through this method is not that simple and not easy. More importantly, that getting pregnant is something which is not in her hands.
d) The Surrogate must clearly understand that surrogacy is very time consuming and that it takes more a year. The surrogate should not be totally dependent on that money which is coming through surrogacy, as the surrogate tends to become hysterical until the receiving of the money.
e) The surrogate should realise that she will be given a lot of medication and injections during the term of the pregnancy and she should be ready to go through these pains.
f) The spouse of the surrogate must not only accept the process of the surrogate taking part in the surrogacy, but he should also encourage the surrogate. It has been understood that the surrogate would be facing undesirable family problems in cases where she volunteers without the knowledge or acknowledgement of her spouse. More importantly, the surrogate spouse should have been informed about all the possibilities of the surrogacy.
g) The surrogate should be aware of selective reduction. The surrogate mother must clearly understand that conceiving of more than one baby is an inherent possibility and there are high chances for it to take place. In such cases, selective reduction would be a normal process. The surrogate mother should accept selective reduction, if the need arises. Multiples are very common in surrogacy and it cannot be assumed that it cannot happen in your case.
h) The surrogate should fix her own fees to see what according to her is the proper remuneration according. In most of the cases, this would also enable the Intended Parents to understand the attitude of the surrogate.
i) It is most appropriate that the surrogate has had prior proven pregnancies. The whole procedure of surrogacy is extremely expensive for the Intended Parents. The Intended Parents take up all the expenses incurred in this lengthy procedure. It has to be taken into consideration that where the surrogate has already had a proven pregnancy, it would enhance her quality as a surrogate as she has proved her capacity as a child bearer already.
j) Surrogate would be facing unexplainable hardship in parting with the child which she had borne for the term. In such cases, it is most advisable that the surrogate has already got children to whom she can return back, after handing over the child to the Intended Parents.
k) Though the surrogate may be ready mentally for handing over the child, the imbalance of hormones which takes place during the time of pregnancy might bring in mood swings for the surrogate and might destruct all her mental stability. In such cases, it is most advisable that the surrogate mother has already got childrens to whom she can get back after the surrogacy.
l) There exists a possibility that the surrogate mother might never be able to conceive again after undergoing surrogacy. It is most advisable that the surrogate mother has already given birth to children, so that she would not feel exploited in cases the surrogacy leaves behind a situation where she can never bear a child again.
m) The surrogate mother should be a woman of courage who will be able to face independently various constraints which are emotional as well societal.
n) The surrogate mother must take her own independent and autonomous decision to act as a surrogate and to bear the child. The decision to act as a surrogate should not come out of compulsion or out of coercion. This is most important in country like India where woman are not independent to make decisions.
The experience of motherhood is a wonderful experience and the surrogate should wilfully come forward for doing it. It is only then that the Intended Parents as well the surrogate go through the process conveniently and comfortably. More importantly, it is a good deed and it is not advisable for anyone to feel exploited in the process.