Posts Tagged surrogacy lawyer

Michigan couple lose their child to surrogate mother

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 21st 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 3rd 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.

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Why do you need an Independent Surrogacy Lawyer in India?

 

           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.

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Choose the Right Surrogate in India

Indian Surrogacy Law Centre recommends the following pointers for choosing of the right surrogate mother: 

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.  

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