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.

Related posts:

1. Gujarat High Court rules on Surrogacy case
2. Baby Manji Yamada Vs. Union of India (UOI) and Anr.
3. New York Court upholds Parentage decision of California court in surrogacy case

Related posts:

1. Bulgaria to amend its laws to allow Surrogacy

The article brings me quite an amount of curiosity as to what difference this case had made as I am through informed sources that the processing of the Passport applications of Children born through surrogacy is a regular affair at Bombay and the Hyderabad Consulate. This case to be singled out certainly is very curious.

The link to the article is found here.

Related posts:

1. Taking the Surrogate Child to the country of the Intended Parents
2. Couple lose their child due to an unenforceable Contract
3. Choose the Right Surrogate in India

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:

[1] 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.

[2] 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.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] 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.

[5] 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.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] 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.

Related posts:

1. Choose the Right Surrogate in India
2. When is the right time for having a Surrogacy Agreement with the Surrogate?
3. Couple lose their child due to an unenforceable Contract

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.

Related posts:

1. Choose the Right Surrogate in India
2. Baby Manji Yamada Vs. Union of India (UOI) and Anr.
3. Couple lose their child due to an unenforceable Contract

Related posts:

1. Choose the Right Surrogate in India
2. When is the right time for having a Surrogacy Agreement with the Surrogate?
3. Taking the Surrogate Child to the country of the Intended Parents

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.  

Related posts:

1. Baby Manji Yamada Vs. Union of India (UOI) and Anr.
2. When is the right time for having a Surrogacy Agreement with the Surrogate?
3. Couple lose their child due to an unenforceable Contract