Norway has always maintained a conservative approach to surrogacy arrangements and surrogacy has always been a subject of national debate. The Norway government always discouraged their nationals for taking up commercial surrogacy arrangements. An unconventional development has taken place with these backgrounds with a royal intervention.
Norway’s Crown Princess Mette-Marit had come down to India secretly to help her gay friend and his husband for taking care of the new born children born through surrogacy in India. The gay couple took up a surrogacy arrangement in New Delhi, India; but were unable to come down to India for taking care of the new born twins. One of the parents was an employee of the Palace and a friend of the Crown Princess. The Crown Princess flew down to India immediately with Diplomatic Passport and nursed the children. The Indian Authorities were not informed of the arrival and the staff of the hospital where the children were born took her to be a nanny. A relative of one of the parents later came down to India and relieved the Crown Princess. The new-borns were granted VISA in November 2012, after which the children were taken back to Norway.
The crown princess is said to have acknowledged the national debate on surrogacy but insisted that she was not taking sides over the issue; and that she did what a friend has to do.
Couple of years back, I handled the case of a single mother from Norway who had taken up surrogacy in India and could not take the children back to Norway owing to high opposition from the Norway government. After a long debate with various governmental bodies, she was able to take the child back almost 2 years from the date of the birth of the children. I certainly find this development surprising.
Pakistan found itself in the unlikely company of India in the group of nations that require a special legislation on surrogacy to deal with complex issues of domestic and international surrogacy. There is no special legislation on surrogacy in Pakistan, and the Lahore High Court decided that surrogacy is neither allowed nor permitted.
Pakistan’s Rawalpindi Bench of the Lahore High Court decided the first case involving a surrogacy arrangement and subsequent parental rights that arose from it. The crux of the facts of the case is that the biological mother, Farzana Naheed, claims complete parental rights over the child, Fatima, under the ground that she was the wedded wife of the biological father when the child was born. The alleged Biological Father of the child, Farooq Siddique, in his late 50s, claims that he had entered into a surrogacy agreement with the biological mother, and that the child was born through surrogacy. He further claims that the child is not genetically related to the biological mother, Farzana.
With this background, the biological mother filed an application under the Code of Criminal Procedure for the custody of the child in the Sessions Court. The Sessions Court transferred her custody to the mother two weeks after the birth of the child. The child is now is now eight years old and her legal status is still in limbo.
The alleged Biological Father of the child, Farooq Siddique, then moved to the Rawalpindi Bench of the Lahore High Court on appeal and presented the surrogacy agreement to the Court to assert his claim over the child. The High Court hearing a case on surrogacy for the first time, said that there was no law on surrogacy in Pakistan. The court further stated that even if there is a law that allowed surrogacy in Pakistan, there is no material evidence to prove that the Siddique is the biological father of the child. Siddiqui had alleged that Naheed and her relatives had tried blackmailing him for more money while she was pregnant. Contrastingly, the court also did not accept the fact that the marriage took place between the biological mother and Farooq Siddique as the biological mother could not prove her marriage to him in a satisfactory manner.
The court stated that the custody of the child should rest with the biological mother Naheed and that her poverty should not stand in her way for exercising parental rights over her child. Further, since there is no special legislation on surrogacy existing in Pakistan, the Court had no legal material to accept or reject the prayer of the biological mother and decided the case as in the case of a normal petition for custodial rights.
The Jan Balaz Case at the Supreme Court is now taking wild turns with the suggestion of the Solicitor General of India being turned down by the German Couple. As reported from several sources, the German Couple’s Counsel had expressed their willingness to contest the matter before the Supreme Court rather than wait for the Government with a favourable response. The Solicitor General of India had earlier sought time before the Supreme Court stating that the Government is trying to do its best for the immediate settlement of the matter in an amicable manner. The German Couple’s Counsel had stated that four month had already elapsed the same way and they wished to fight the matter rather than wait for the Government to come with an amicable settlement. The German Couple’s Counsel had represented before the Supreme Court that the decision of the Gujarat High Court may be allowed to operate since the Government of India does not have a problem in allowing the children for going abroad. The Solicitor General protested against this argument stating that the holding of the surrogate mother to be the legal mother of the child would have far reaching impact and that cannot be allowed.
The Supreme Court then directed the Central Adoption Resource Agency (CARA) to consider as a one-time measure the plea of the German couple for adoption of twins born through a surrogate Indian mother as a special case. The CARA is the body which was set up pursuant to India becoming a party to Hague Convention on Inter-country Adoption in the year 2003.
No arguemnts has yet been presented before the Supreme Court of India on the effects of holding the surrogate mother to be the legal mother of the child. The stand of other intended parents who are presently taking up surrogacy in India has also not been made available before the Supreme Court. The Supreme Court decision would be affecting every intended parent who is presently taking up surrogacy in India.