Legal Audit and Risk Assessment

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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.

Jan Balaz case

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The Supreme Court of India is unrelentingly making attempts to have the twins born through surrogacy to be sent along with the German Couple to their homeland. Understanding the feeble chances of granting Indian Citizenship to the children, the Indian government tried negotiating with the German Authorities to grant nationality for the children as a ‘special case.’ However, the German Authorities held a firm ‘no’ as surrogacy was not permitted in Germany.

The Indian Government had agreed that the Central Adoption Resource Agency shall relax its restriction on children born through surrogacy and shall try for the adoption of the children by the intended parents. The Supreme Court responded by directing the government to file an affidavit expressing its willingness to relax the regulation for this purpose. The case is next posted to March 16th 2010.

The impact of the proposed decision of the Apex Court is certainly alarming. The Supreme Court of India is on the verge of ruling that the children of Jan Balaz (the German) have to be adopted from the surrogate mother. This would have an indirectly effect the names of the intended parents on the birth certificate. Once it is ruled that the surrogate mother has to give in adoption, it clearly means that the surrogate mother is the legal mother of the child and that their name will figure on the birth certificate. This would again create confusion in the law of international surrogacy where in the absence of laws in India, the Supreme Court is holding the surrogate mother to be the legal mother of the child. This of course is not in accordance with the surrogacy agreement which the couple of entered with the surrogate mother and also with the ICMR guidelines which clearly states that the name of the Intended Parents shall be in the birth certificate. It has to be noted at this instance that the Birth Certificate in this case carries the name of the surrogate mother and Mr. Jan Balaz, the German National.

The Supreme Court of India has not been briefed on the other couples who have taken up surrogacy in India with the belief that the birth certificate would be issued in the name of intended parents. This decision shall have an impact on all those cases where intended parents are already pregnant with the surrogate mothers with a premise that the birth certificate would be issued in their name. A representation to the Supreme Court on this count is imminent.