Surrogacy in India » surrogacy law

Israel constitutes committee for reviewing Third Party Reproduction for Gay Couples

Hari Ramasubramanian — Thu, 01 Apr 2010 07:16:25 +0000

Israel High Court of Justice decided on an application filed by a gay married couple for taking up third party reproduction and raise a child. The High Court after deep thought elaborately decided that the matter was one to be decided by the Congress (Knesset) and not by the court as the matter involves policy of the state.

The frame of the argument was in short that the availability of the surrogacy arrangement only to heterosexual couples was arbitrary and violates the constitution, which guarantees equality. The state vehemently opposed this argument stating that the matter had far reach implications. The State of Israel decided to establish a committee to study the issue of third party reproduction.

Another interesting question that was considered was the extent of using scientific improvements such as surrogacy. It was pleaded by the State that surrogacy was allowed in Israel only for the intended parents who could not otherwise reach parenthood for medical reasons. It was argued that this couldn’t be stretched for homosexual couples.

The Supreme Court of Israel also sits as the High Court of Justice. This function is unique to the Israeli system because as the High Court of Justice, the Supreme Court acts as a court of first and last instance. The High Court of Justice exercises judicial review over the other branches of government, and has powers “in matters in which it considers it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal.”

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French Court holds IP to be legal parents, but not for nationality

Hari Ramasubramanian — Fri, 19 Mar 2010 13:03:59 +0000

Dominique and Sylvie Mennesson Photo: AFP

India does not seem to be the only country caught in midst of legal controversies over issues of surrogacy. France is also facing a similar question.

Since 1994, surrogacy arrangements are held to be illegal in France according to The French Law – Article 16-7 inserted by Act No. 94-653 of July 29, 1994 Art.1 I, II, art. 3 Official Journal of July 30, 1994 states -”Any agreement on procreation or gestation on behalf of others is void.”

A French couple, Dominique and Sylvie Mennesson paid a surrogate mother in California about $10,000 in 2000 to carry their child. The surrogate mother carried the child to term and have birth to twin daughters. On birth the twins Isa and Léa, were given US birth certificates recognising the Mennesson couple as the legal parents – but the French authorities refused to accept these.

The Paris Court of Appeals had held that Dominique and Sylvie Mennesson were the legal parents of the children, but refused to consider the children as French nationals. The Mennesson couple have reportedly stated that they will take their case to the Cour de Cassation which is France’s highest court. They hope to set a legal precedent for other parents of children born to surrogate mothers, after six years of legal action.

A draft law hoping to overturn the present law of holding any agreement for procreation of child was presented to the Senate in January, but has yet to be discussed.

Michigan couple lose their child to surrogate mother

Hari Ramasubramanian — Thu, 04 Feb 2010 08:08:46 +0000

Amy Kehoe and Scott – a couple from Michigan were trying for a child. Amy underwent miscarriage thrice and was medically advised surrogacy. The couple had found a surrogate mother named Shelly Baker from Detroit. Shelly Baker had four children and had already been a surrogate mother twice. The couple entered into a surrogacy agreement with Shelly Baker. Shelly Baker had then become pregnant carrying the child of the couple.

On July 28 2008 Shelly gave birth to a boy and a girl. After a few days Amy brought the twins Ethan and Bridget home. On August 21^st Amy and Scott received the notice from Shelly that the couple must give up the babies in about two weeks. Amy had also received intimation from her attorney that Shelly was going to revoke her adoption. Apparently Shelly has accused Amy of not disclosing information regarding a drug possession incident the latter was charged for years ago and that she was seeing a psychiatrist for anxiety disorder. But Amy claims that Shelly was actually acquainted of the fact that Amy was seeing a psychiatrist.

Unfortunately the laws in Michigan are wary since it is one of the five states that do not recognize surrogacy contracts and hence subsequently making them unenforceable. It is such that irrespective of the intended parent’s genetic relation with the child, the biological mother giving birth to the child would be considered the legal mother. Because of the surrogacy laws in Michigan, Shelly had the final say and on September 3^rd the couple were forced to return the babies to Shelly.

These short facts raises serious concerns in choosing to take up surrogacy in states such as Michigan where neither is allowed nor banned. Surrogacy agreements are not enforceable in such states. Surrogacy in India is lot better where the legal complications are far less. In fact there is a nil history of reported case of the surrogate mother claiming the child.

US Consulate denies American citizenship to child

Hari Ramasubramanian — Tue, 26 Jan 2010 07:24:19 +0000

I learn from a news report, Times of India, Chennai Edition dated January 25^th 2010 of a strange case involving an American Couple where the American Consulate had denied citizenship to a child which was not genetically related to the Intended Mother. The intended mother reportedly had taken recourse to adoption for taking her child to the US. I am not completely aware of the facts of the case and the article also does not disclose the fine facts of the issue. However, I have mailed the author of the article, Ms./Mrs. Jaya Menon asking for more information on her article. I await the reply for the same.

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.

The Telegraph writes on Indian Surrogacy Law Centre

Hari Ramasubramanian — Tue, 22 Dec 2009 13:29:02 +0000

The Telegraph had written an article on surrogacy recently making reference to the work done by Indian Surrogacy Law Centre in the legal issues. The link to the article may be found here.

Updates on Jan Balaz Case

Hari Ramasubramanian — Tue, 22 Dec 2009 06:03:01 +0000

I am making this post partly from the Supreme Court of India. I flew down from Chennai to Delhi for attending the case of Union of India vs. Jan Balaz. The case was posted before the Bench consisting of G S Singhvi and A K Ganguly. The Solicitor General of India, Mr. Gopal Subramanian unfolded India’s stand that India is unable to grant Indian Citizenship to a children merely for the purpose of taking them to their homeland. Moreover, he wanted Mr. Jan Balaz to unconditionally submit himself to the Jurisdiction of the Apex Court even if he moves outside India. Senior Counsel Mr. Rao said he shall undertake to fulfill all conditions as imposed by the Union of India in order to take his children back to his nation. The case is next posted for hearing on the 4^th January 2010. There are lots of unanswered hitches which are to be decided by the Supreme Court of India. Meanwhile, Indian Surrogacy Law Centre is still deciding it’s modalities of contributing for this case. I shall write on this subject more when there is an improvement.

Why do you need an Independent Surrogacy Lawyer in India?

Hari Ramasubramanian — Mon, 16 Mar 2009 10:37:52 +0000

Thought of engaging an independent Surrogacy Lawyer usually crops up when the Commissioning parent have finalized on the clinic and are fixing the dates for taking up the procedures. They contact the clinic asking for the legal details and the clinic assures that the clinic does have a lawyer who shall take care of the interest of the parties. Few clinics also claim that there is no need for a lawyer, as there are not much legal issues in India that requires a lawyer. Being assured by these words, the commissioning parent forget the legal issues and take up the procedures unmindful of the legal complications involved and about who is going to protect their interest on arising of any legal complications. The thoughts raise again only when there is a problem between the clinic and the Intended Parent or when the procedures have been completed without a knowledge as to how to take the child to their respective nation.

NO LAWYER CAN REPRESENT TWO PARTIES

A lawyer can advise or represent only one party. A surrogacy arrangement shall consist of atleast 3 parties, the intended parent, the surrogate and the clinic or the agency. It is logically and practically not possible the same lawyer would be advising more than one party to an agreement. The role of the lawyer in the that case would be that of a mere moderator than that of a solicitor. It also has to be understood that the lawyer would not be able to make justice to any of the parties in that case.

The question which decides the need of independent legal advisor is “Which lawyer will you consult if there arises any legal complication?”

NATIONALITY ISSUES

The intended parents come to India with the dream of parenthood, that they can take the surrogate baby to their home land after its birth. But is it not required that the Intended Parents have verified the legal position with regard to taking the child back to their nation?

It is true that India has got no law with regard to surrogacy, but that does not mean that India does not have a law for nationality as well. The legal complications over taking the child to the nation of the IP are many, and have to be address at the earliest time, even before taking up the procedures in India.

For Example, according to the UK Laws, the child born to an Indian Surrogate cannot be directly registered as that of the Intended Parents. There are legal issues in this case, those of paternity and that of nationality of the child. These issues have to be essentially taken care by a “Legal Screening” program by a surrogacy lawyer.

SURROGACY AGREEMENT

It has to be necessarily understood that surrogacy is arrangement between the parties to it, who are bound by a document called as the “surrogacy agreement”. The surrogacy agreement is the code which governs the role of the parties to the surrogacy agreement. This agreement mentions the role of the surrogate and that of the Intended Parent in proceeding towards surrogacy.

Another important element is that surrogacy agreements in India are not held valid in most of the nations as few of the issues mentioned there is banned by the law of those countries. This would aggravate the issues relating to the Nationality of the child. Therefore it is most important the agreements of an international standard, so that it can be acceptable to the nation of the Intende Parent as well.

SURROGACY ARRANGEMENT AGREEMENT

Surrogacy Arrangement agreement is entered between the Intended Parents and the Clinic which provides the services. This agreement may also called as the “Service Provider agreement.” Remember, this is the most important agreement that has to be entered into by the parties to surrogacy. Though this agreement is not mentioned anywhere in the ICMR Guidelines, without this agreement, you service provider, the clinic or the agency, may claim that they do not have any binding factor. This agreement shall make sure that there is a proper understanding with regard to the dates and also with regard to the payment schedule.

INTEREST PROTECTION OF THE INTENDED PARENTS

The Intended Parents during their stay in India enter into various commitments without realizing the legal importance of the same. It is most important that the they have a lawyer by their side, who can make sure that the necessary legal precautions are made in their interest.

Legal Audit and Risk Assessment