The Kerala High Court had decided a case pertaining to the maternity benefits of an intended mother who had a child through a surrogacy arrangement. The applicant in the case, Mrs. Geetha is an employee with the The Kerala Livestock Development Board, a Government of Kerala undertaking.

The brief facts are that the applicant and her husband were compelled to take up a surrogacy arrangement to further their family as they remained childless for more than 20 years. The couple entered into an agreement with a clinic in Hyderabad to take up a surrogacy arrangement. Following this, the surrogate mother delivered a baby on 18/06/2014 and the custody of the child was handed over to the intended mother immediately after the birth.

The intended mother had made an application for leave from work to her employer as part of exercising her maternity benefits. The employer, Kerala Livestock Development Board had refused the application on the ground that maternity benefits are available only for birth under normal circumstances and had recommended that the intended mother goes on leave with loss of pay. Aggrieved over this order, the intended mother approached the High Court of Kerala by way of writ petition. She has urged the Kerala High Court to allow the writ petition, with a direction to her employer to provide all maternity benefits to her, as if she had undergone the process of pregnancy and had been delivered of a baby.

The earlier post on this issue is found here – http://blog.indiansurrogacylaw.com/maternity-leave-surrogacy-high-court/

The main contention of the intended mother was  that particular arrangement the petitioner had, the surrogate mother only underwent the gestational process, without much of emotional quotient, as the petitioner and her husband remained the genetic parents of the child born through the surrogacy arrangement. By referring to various international treaties and conventions, the intended mother contends that, to most of the international treaties, India is a signatory and that it is obligatory for the country to honour those commitments, without taking shelter under statute law.

The case was decided by HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU. The decision went in favour of the intended mother, but distinguished the decision of the Madras High Court in the case of the Kalaiselvi vs. Port Trust.

The Judge posed the following questions to arrive at a decision:

i. Whether the petitioner is entitled to maternity leave, having had a child through the process of surrogacy, she herself being the genetic or biological mother?
ii. Whether, in the face of a particular legislative field having been occupied by an extant domestic enactment, the International Law conventions and treaty obligations can be enforced through Municipal Courts?
iii. Whether the dichotomy in maternity is admissible, so that pre-natal and post-natal periods can be viewed distinctly in relation to two different women?

First Issue:. Whether the petitioner is entitled to maternity leave, having had a child through the process of surrogacy, she herself being the genetic or biological mother?

The Court held that the Maternity Benefit Act focuses on conception, gestation and delivery of a child and not for bringing up the child. The Court reasoned that if the Maternity Benefits were only for the upbringing of a new-born, a leave of a few days and compensation of a few thousand rupees are woefully inadequate to serve the said purposes. The social welfare legislation also provided for the breaks for feeding of the child, which would indicate the importance of the mother’s presence with the child. Merely because the genetic/intended mother had not carried the child, it cannot be said that she cannot be entitled to Maternity Benefits.

Second issue: Whether, in the face of a particular legislative field having been occupied by an extant domestic enactment, the International Law conventions and treaty obligations can be enforced through Municipal Courts? 

The importance of this issue was that India was a signatory to International Conventions like Convention No.183 of International Labour Organisation and the Universal Declaration of Human Rights. The International Law requires that unless there is a local/domestic law to the contrary, the international laws to which the country is a signatory must be enforced. The Judge went forward to extract the provisions from the International Conventions that ensured every child the same social protection. Since the Assisted Reproductive Technology (Regulation) Bill had not been enacted and is still in the drafting stage, the International Conventions can be relied to protect the rights of a new-born child and that of the genetic mother.
The third issue: Whether the dichotomy in maternity is admissible, so that pre-natal and post-natal periods can be viewed distinctly in relation to two different women?

The essence of this issue is that medical advancement has essentially created a divide between who carries the child and who is the legal parent of the child and who takes care of the care. In the present case, the intended mother wants every benefit available for a mother under normal circumstances, who had conceived, gestated and borne the child. The maternity benefits provides for the time for a mother who had delivered a child to recoup herself due to the physical strain she had undergone during the pre-natal period. The maternity benefits also provided for the time the mother is required to care for the child, post-birth. The Court ruled that both of these aspects have to be looked into distinctly.

The surrogate mother had carried the child, genetically unrelated to her. The child had been handed over the genetic mother, who takes care of the child immediately after the birth of the child. The genetic mother shall be entitled to all maternity benefits that she would be able to enjoy during the post-natal stage.

Admittedly, the petitioner has not undergone any pre-natal phase, which in fact was undergone by the surrogate mother, whose rights are not in issue before this Court. From day one, after the delivery, the petitioner is required to be treated as the mother with a newborn baby. Thus, without discriminating, it can be held that the petitioner is entitled to all the benefits that accrue to an employee after the delivery, as have been provided under the Act or the Staff Rules. Nothing more; nothing less, for the petitioner cannot compel the employer to place her on a higher pedestal than a natural mother could have been placed, after undergoing the pregnancy.

Thus, to conclude, this Court declares that there ought not to be any discrimination of a woman as far as the maternity benefits are concerned only on the ground that she has obtained the baby through surrogacy. It is further made clear that, keeping in view the dichotomy of maternity or motherhood, the petitioner is entitled to all the benefits an employee could have on post-delivery, sans the leave involving the health of the mother after the delivery. In other words, the child specific statutory benefits, if any, can, and ought to, be extended to the petitioner.

It is important to note that the Judge had distinguished from the Kalaiselvi case decided from the Madras High Court. In the Kalaiselvi case, Justice K Chandru had paid more importance to the mother-child bonding to the post-natal period. However, in this decision, importance is given to the fact that the dichotomy in maternity. It can be clearly seen that the law to assisted reproduction is growing.

Few of my colleagues at the American Bar Association had expressed concern over the changing circumstances for surrogacy in India. The Indian Embassies in various countries have published the following notification stating that there is a special category of visa called the “Surrogacy VISA.” However, there is no clarity from the embassy as to what are the requirements for obtaining the new VISA. The basis on which the new VISA category has come into force is a matter of question as there is no special legislation on surrogacy in India.

 

SURROGACY

Any person seeking a visa to India for purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law.

INSTRUCTIONS FOR VISA FOR SURROGACY ARRANGMENTS

This is to bring to notice that any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of his/her country permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian law.

Further, this notification left commissioning couple perplexed as to what are the requirements to be fulfilled to take up surrogacy in India. Without proper information from the Indian Embassies, several intended parents have been unable to satisfy the authorities on the documentation for obtaining the new surrogacy VISA. Many Indian Embassies also required specific letter from the Government which states that surrogacy is recognised in their country and that the country would allow the child born through surrogacy back into their nation. This proves challenging as no Government would provide such a letter at a preliminary stage and grant of citizenship for children born abroad allows depends on the circumstance surrounding the birth.

I had taken the initiative to investigate over this matter and sought clarity over the regulations based on which such notifications have been issued. As part of the initiative, I wrote to  Ministry of External Affairs and various embassies that have published such Notification as the above.

 

The questions posed to the Ministry of External Affairs are as follows:

  1. What are the legal circumstances on which the said notice has been published in the Embassy Website?
  2. Please provide copies of rules/regulation/Gazette notification/legislation by which the above-mentioned notice has been published in the website of the Embassies/High Commission of India.
  3. Under which rule/regulation/Act the said notice was published in the website of the Embassy?
  4. Who is the authority who recommended/caused the publication of the said notice?
  5. Please provide the certified copy of the official communication from the Authority recommending/causing the publication of the said notice in the website of the Embassy and/or Official Gazette.
  6. Which Authority approved the publication of the said notice? Please provide certified copies relating to the Approval, if any.
  7. Which authority approved the publication of the said notices in the websites of the embassies? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  8. What is the general procedure to be adopted for approving and publishing a similar notice/advisory in the website of the Embassies/High Commission of India? Please furnish certified copies of the rules/regulations/legislations/notification pertaining to the approval of the same.
  9. Has the procedure specified in Question 8 been followed for the publication of the notice?
  10. Which Act /Rule/ Regulation governs the approval and publication of any notice /website in the Embassies of India located abroad.
  11. Which Department in M.E.A. is in-charge and responsible for the drafting of the contents in the website of the Embassy?
  12. Whether there is any Rule/ Regulation/Legislation/Regulation allowing or prohibiting surrogacy in India for foreign nationals?
  13. Which category of VISA is required to be applied for taking up surrogacy in India by foreign nationals?
  14. What is the procedure for obtaining the VISA for taking up surrogacy arrangement in India? Please furnish copies of the related Rule/ Regulation/Legislation/Notification pertaining specifically for VISA for surrogacy procedure in India.
  15. What are the supporting documents/certifications required to apply for the VISA for surrogacy procedure in India?
  16. If any letter is required from any Government/autonomous agency of the country of the Foreign National, what should such letter/Certification contain for the satisfaction of the Indian authorities when applying for VISA for surrogacy procedure in India?
  17. If any letter/certificate is required from any Government agency/authority for obtaining VISA for surrogacy procedure in India, and if the Government Agency/Authority is failing to provide such documentation/certification, what other documentation would be required to be submitted?
  18. If any documentation is required, which Rule/Regulation/Legislation/Gazette Notification etc stipulates that foreign intended parents seeking surrogacy in India have to provide such documentation as stipulated in Question 17 above.
  19. How many VISA applications have been received till date where the applicants have stated “surrogacy” as their purpose of visit? Please specify the origin country, category of the VISA applied for, Year wise Split-up and the result of such applications.
  20. Till date, how many “EXIT VISA stamping” have been done for children born through surrogacy in India? Please provide year-wise split-up along with the records on the citizenship of the child/applying parents wherein application for EXIT VISA stamping has been received.
I await to hear from the Ministry of External Affairs and the Embassies on this drive to obtain information on international commercial surrogacy in India.

 

An interesting development has taken place in Hong Kong.

Mr. Peter Lee Ka-kit, a resident of Hong Kong had triplets through surrogacy in America. Mr. Peter Lee Ka-kit is son of Mr. Lee Shau-Kee, 18th richest man in the world ranked by the Forbes.

Commercial Surrogacy is banned in China and it is a punishable offence in China irrespective of where the surrogacy arrangement is entered into.  The matter is reportedly referred to the police who might be initiating the first prosecution under the ordinance since its introduction in the year 2000.

The German Couple who had a tiring journey through the Indian Judicial System in a bid to travel back to their homeland with the twin children finally have crossed the first step. The German Government had granted VISA for the children to be brought to Germany. The Central Adoption Resource Agency (CARA) had earlier agreed that it would issue a No Objection Certificate for the adoption of the children. With what can be seen, the children have to be adopted (or something similar) by the German Couple in Germany. The Union of India had given the Exit Permit for the children to be taken to Germany.

The children remain stateless yet. The Union of India had only granted the Exit Permit to the children and not a citizenship. I do not see a change of scenario as far as nationality is concerned. However, the change in attitude of the German Government is seen by issuance of the VISA. The German Couple now have an opportunity to fight for their rights at judicial forums in Germany for the citizenship of the children. The German Government had always remained steadfast to its view that familial ties arising out of a surrogacy agreement cannot be valid in law. German Government was also very precautious that the Jan Balaz’s case should be a precedent for other Germans to take up surrogacy abroad.

The German Couple may be required to adopt the twin children in Germany. This would pave way for the twin children to obtain German Citizenship. However, the Balaz Family has percolated through the first step with the guidance and aid of the Supreme Court of India.

When the appeal was filed before the Supreme Court of India, the court did not have much in its hands as the issue largely involved the policy of two states, Germany and India. Germany and India had conflicting policies with regard to surrogacy.

India was unable to grant citizenship to the twins born through surrogacy. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be Indian Citizens at the time of birth of the child. In the case on hand the children did not have an Indian National Parent. The contention of the German Couple was that the children born to an Indian surrogate mother using the gamete from an Indian anonymous egg donor is India; and that the surrogate mother was required to be regarded as the legal mother of the children. This contention had got the sympathetic eyes of the High Court of Gujarat, which agreed that the surrogate mother should be regarded as the legal mother of the child. The Gujarat High also directed the Union of India to grant citizenship and passport for the children enabling them to travel abroad.

The scenario took a complete change when the Union of India rushed to the Supreme Court of India challenging the verdict of the High Court of India. The Supreme Court of India seemed unmoved by the plea of the German Couple. The Solicitor General had time again stood stead fast to his argument that children born to a surrogate mother cannot be provided with Indian Citizenship.

I personally feel that the arguments which could have strengthened the stand of Union of India, but which was not presented is as follows:

(a) The Supreme Court of India in its earlier decision of Baby Manji (Japanese baby) held that the surrogacy agreement is valid in law.

(b) Any basic surrogacy agreement is required to contain the clause that the surrogate mother relinquishes her rights over the child, which is born to her.

(c)  The surrogacy agreement has to be enforced by a court of law. In the absence of any law to the contrary, the surrogacy agreement should control the conduct of the parties and a contrary view cannot be taken.

(d) Where the court takes an opinion, which is unfounded in law and in the surrogacy agreement, it would amount to legislating of a new principle.

(e) Concluding, in absence of law to the effect that the surrogate mother is the legal mother of the child, the court cannot bring out this new theory.

(f)  India does not have a legal mechanism whereby the parental rights of the surrogate mother would be transferred to the intended parent.

However, the above argument was not presented before the Supreme Court of India in support of the Union of India.

The Supreme Court of India successfully guided the German Couple through the legal maze. The Supreme Court of India had also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justices G.S. Singhvi and C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.

There is a quite a significant development in the Jan Balaz’s Case which is presently pending before the Supreme Court of India.

On the 3rd May 2010, the Central Adoption Resource Agency (CARA) has reportedly represented before the Supreme Court of India its willingness to grant a No Objection Certificate to the German Couple, Jan Balaz and his wife to adopt their twin children born through surrogacy in India. This response form the Supreme Court of India would certainly prove to be beneficial to the couple who have been longing to take back their twin children back to their nation.

However, the much-awaited decision of the Apex Court would be answering many questions, and would be making way for many more new questions. This is the second decision from the Apex Court on Surrogacy, the first being that of Baby Manji. This decision of the Supreme Court of India is expected to answer the most important question of who is the legal mother of a child born through surrogacy.

The Central Adoption Resource Agency (CARA) was earlier directed by the Supreme Court of India to consider the application for adoption made by the German Couple. The CARA had represented before the Supreme Court of India that children born through surrogacy is not within its scope of working, and that CARA can handle only cases of abandoned children. The Supreme Court of India had then directed CARA to reconsider its report and submit a fresh report.

This however does not turn out to be the final solution for the German Couple, as they are required to wait for the reply from the German government for the adoption plea.