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.
I have been forced to ban myself off the blog for a few days due to a very hectic work schedule and too much travel. However, here I am back a wonderful news that’s going to bring a smile on anyone’s face who’s reading this.
The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:
 Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
 A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
 A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
 One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
 Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
 The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
 Right to privacy of donor as well as surrogate mother should be protected.
 Sex-selective surrogacy should be prohibited.
 Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.
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.
The foremost concern of the Intended Parents embarking on surrogacy is, “How do I take my child back to my country?”
This issue has gained major importance, and may be is one of the main reasons as to why Intended Parents choose India as the destination for surrogacy. The laws of various countries on surrogacy vary differently and therefore every national is placed on a very different footing.
European states such as the UK, Italy and few others have been dealing with surrogacy in a conservative manner, thus not making available the full benefits which could otherwise be derived out of assisted reproduction. The legal position of these countries is that the surrogate, who delivers the baby, shall be regarded the actual mother of the child, and her name be entered in the birth certificate of the baby. The Intended Parents (or the Genetic Parents) are required to take in adoption from the surrogate and her spouse. These laws do not give surrogacy the legal sanctity of ‘alternative form of reproduction’ but merely views them as an addition to adoption.
On the other hand, the American approach to surrogacy is completely liberal. Commercial surrogacy is an accepted form of Assisted Reproductive Techniques. The legal issues for American Couple coming down to India are far simpler compared to the European Nations. But again, a large number of American parents have come down to India, mainly because; the scientific improvements are kept at pedestal, which is not commercially reachable by the common man.
APPLICATION OF INDIAN LAWS
The application of the Indian Laws for the Intended Parents from abroad is their most worrying element. When the Intended Parents come down to India for surrogacy, the scenario is completely different and gains major importance.
The applicability of the Indian Laws is the same irrespective of the nationality of the intended parents. Laws of the respective of the countries play a role only at the stage when the intended parents attempt to take the child to their nations. But in most cases, for the purpose of determining of the nationality of child, Indian Laws are of prime importance.
The consulate of the country of Intended Parent has to be consulted before we arrive at a decision to take up the procedures in India. For this purpose, effective communication and representation at the Embassy gains prime importance.
SINGLE PARENTING AND SAME SEX PARENTING
With regard to gay/lesbian parenting and single parenting, the European laws are very restricting. Most of those intended parents, take up the procedure as single parents in India, and then to take the baby back to their home country. And in these cases also, the Consulate of the country in India concerned has to be consulted and informed.
DETERMINATION OF LEGAL POSITION-IMPORTANCE
In India, when a child is born using a surrogate, the Birth Certificate shall bear the name of the genetic parents, helping the Intended Parents take their child to their home country. And thus, before embarking on surrogacy, the Intended Parents must have complete knowledge about the laws applicable in this regard. Such knowledge gathered beforehand helps in proper decision making. This also helps cut down the delay that arises after the birth of the surrogate child. Hence, the intended parents should consider such factors before making the decision as to what country to take up surrogacy.
I am presently meeting a lot of people, surrogates, Intended Parents, Doctors and Journalists. All of them seem to sound one voice of fear, “How safe is surrogacy in India?” Whenever this question is posed to me, I would restrict myself to an answer which most appropriate, “The answer depends on every case.”
It is well known that there is no Surrogacy Law in India, still it is held to be legal in India by the Highest Court of the Land. Now that is a great advantage for the people seeking surrogacy in India. There are many a reason why Intended Parents from all over the world prefer India as the destination for surrogacy, it is cost effective and easier than it is in other states, the medical service is very organised, the surrogates are healthy and the list goes on. In such circumstances, India is clearly a good choice for surrogacy.
Now, the question is how safe is it?
I would say it is VERY SAFE if all the required attention is being paid by the intended parent. The attention should start right from choosing of Assisted Reproductive Technology Hospital and sourcing the surrogate. The role of the Indian Council for Medical Research Guidelines steps in at this point. The guidelines are difficult to enforce, but it is actually a very effective document, which makes sure that there is some sort of regularity in the field. It is very important that the Intended Parents insists that these Guidelines are being followed by the hospitals. Along with those guidelines, I think it is most appropriate for the Intended Parents to follow the below mentioned tips:
Looking for the right Surrogate
Firstly, the Intended Parents have to look for the right surrogate who can understand everything bout this procedure, and someone who is happy in being serving as a surrogate. The quality of the surrogate is not based only on her physical attributes but it is also about her emotional inclination.
I have heard of cases where the hospital undertakes everything from sourcing of the surrogate, fix her renumeration, offering her the medical services, making her accomodation, providing her with the medical facilities etc. According to the ICMR guidelines, none of the above activities other than providing of medical services can be undertaken by the hospital. But is it not a pitiable situation that the surrogate is not even informed by the Hospital, whether she helping an Indian Intended Parent or Intended Parent from abroad. The reason given by the hospital is very simple; that the surrogate may look for more money if she knows that she is doing it for foreign intended parents. I am sure that most of intended parents are not going to be happy with this kind of an answer. The intended parents should choose a surrogate who can understand what the consequences of surrogacy, and someone who can share her feelings with the Intended Parents, rather than hide their identity from the surrogate. The intended parents should interact with the surrogates and feel the vibes before choosing her. I am sure this way the industry will not be named as “buying a baby.” A more humane approach is needed.
Indian Intended Parents are having a luxury compared to the intended parents from abroad. I have come across cases where the intended parents want the surrogate mother to stay with them, at their home for the term of pregnancy. Even better, I have a list of surrogates in my database who are ready for it, and who are happy to do it. That is the right spirit.
Thorough legal and medical counselling
The Intended Parents should make sure that the surrogate has gone through a thorough legal and medical counselling session, facilitating her to understand what she is undertaking. The legal and medical counselling attracts great importance in the procedure of surrogacy. The intended parent must employ a suitable independent legal counsellor who specialises in surrogacy, for making surrogate understand the legal aspects. More importantly, the counselling to the surrogate should be given in the local language of the surrogate. This will ensure that the surrogate is aware of what she is taking up.
Another important issue is that the surrogate should be counselled with at least one of relatives or friends. The surrogate should be given all possible information on the subject and she should be made to discuss this issue at home and with her family members before taking up surrogacy. There is immense importance attached to this step, as the Indian surrogates are under immense pressure from their family. A counselling to the family members of the surrogate will help remove the social stigma attached to it and the surrogates will come formward more willingly.
In India, surrogacy is purely a contractual understanding between the parties, which has been recently been pronounced legal by the Supreme Court of India. Care has to be taken that the agreement does not violate any of the laws, which do not in ay way match with surrogacy. I would say that each agreement has to be carefully drafted carrying these very essential points:
· Why does the intended parent opt for surrogacy
· Details about the surrogate
· What is the exact intention between the parties at time of entering into the agreement
· What is type of surrogacy? Gestational, traditional, altruistic, commercial?
· Is the question of motherhood resolved?
· What is the mentioning in the agreement about the paternity?
· Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
· Is the agreement a proper representation of your intentions?
· How is the compensation clause drafted?
· Does the agreement indicate clearly details with regard to the compensation in times unexpected of mis-happenings to the surrogate?
· Child no lien for dispute over the compensation
· Child’s custody with the Intended parents alone is legal custody
· How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?
· What is the jurisdiction for the disputes arising out of the agreement?
Surrogates should be given good care
Surrogates should be given the best of care provided to surrogates else where in the world. I feel that it is worth spending on caring of the surrogate, taking care of her. I am sure that the Intended Parents are in complete agreement with me.
I am not sure if the ICMR would have thought of the Assisted Reproductive Hospitals running the show in surrogacy. I am hearing that there are a few clinics which takes care of everything, including providing of the accommodation for the surrogate. I am not very sure how good a practice is this. In any case, the surrogates should be given great attention and emotional support, so that they don’t carry the feeling they are exploited for a cheaper price. That is where the role of an independent legal counsel makes an appearance.
Need for an independent legal counsel for the Intended Parents in India
I feel the importance of an independent body that can take care of the affairs of the Foreign Intended Parents during the term of the surrogacy. This service shall make sure that the surrogate is given enough attention and that there is no arising of unpleasant times with the surrogates. The details on this shall be dealt by me in my next article.
The above mentioned tips do not absolve all problems from surrogacy. But these are very very effective steps, which avoids a lot of problem. The issue of surrogacy is more about human emotions. I think choosing the right people as the surrogate itself would avoid half the problems.
Overall, India is a very effective destination for surrogacy. There have been cases where problem arises. But, exceptions cannot be taken as examples. A careful cautious Intended Parent is likely to avoid all problem, making a wonderful surrogacy journey.