Times of India writes on Surrogacy by Gay Couple’s in India

by ⋅ Leave a Comment

The Times of India carried the following article on Surrogacy by Gay Couples in India.

BUNDLE OF JOY: Brad Fister with his child, Ashton, in Hyderabad on Thursday
US gay couple rents a womb in Hyderabad
City Woman Delivers Baby For Rs 4 Lakh
Roli Srivastava | TNN

Hyderabad: At an upmarket ethnic wear store in Banjara Hills, US citizen Brad Fister (29) carefully cradled his 22-day-old baby who carries his genes but is ‘made’ at a clinic in Hyderabad. On Thursday, 24 hours before he leaves for Kentucky, US, where he lives with his same-sex partner Michael, Fister said he was happy he was leaving India with ‘his’ daughter.

Fister and Michael, who owns a computer firm, spent an amount of $60,000 to get this child, are the first among a bunch of gay couples who are coming to Hyderabad seeking surrogate mothers to carry babies for them. In fact, Fister’s daughter, who he has named Ashton, is the first surrogate child case of an American couple handled by the US Consulate in Hyderabad.

Fister had come to Hyderabad last year when he donated his sperm which was fused with an egg donated by an Indian egg donor. The resultant embryo was then implanted in a surrogate mother and this entire procedure was carried out at a citybased infertility centre, a first such case (of two dads) for them. The child was delivered by the surrogate mother on January 28 and Fister says the baby girl is his reflection with his “chin and lips’’. The surrogate mother got paid Rs 4 lakh for carrying the baby, the going rate for rented wombs in the city. The presence of international clients in the surrogacy industry in Hyderabad, say industry insiders, have led to higher rates for surrogate mothers.  Rates, they say, have doubled over the last few months. Of the total Rs 4-4.5 lakh charged for the surrogate mother, the woman who delivers the child gets Rs 2.5 lakh and another one lakh is earmarked for her diet and comfort during the ninemonth period. The remaining amount of Rs 50,000 goes to the registered medical practitioner who would get the surrogate mother. Surrogacy, a $500 mn biz Hyderabad.

While questions are being raised on how ethical surrogacy is, it is an established business in the country with its worth reportedly pegged at around $500 million.

For those like US citizen Brad Fister, surrogacy is a boon. An interior designer, Fister says he always wanted a baby but adoption norms in the US are difficult. He made his first visit to India on January 25, 2009 after watching an Oprah Winfrey Show episode on surrogacy which featured Dr Naina Patel of an infertility clinic in Anand. She was, predictably, their first choice “But, Dr Patel declined because we are gay couple,’’ said Fister. He then came to Hyderabad, to Kiran Infertility Centre, through one of the many agencies that have come up to help such couples, both gay and straight, with surrogate mother deals. Of these, Surrogate Abroad Inc. that offers people based out of the US an end-to-end surrogacy service in India, clicked.The couple had already spent $ 20,000 in their quest for a child in the US and the promise of having an escort in India to facilitate their journey through the dusty streets leading to infertility clinics seemed good. For many couples, India is also a safe haven given that commercial surrogacy was legalised in 2002. Besides, the country has an additional advantage of the biological mother not staking claim to the child.

But if half the battle was about a pregnancy clicking, the remaining half was about getting the paperwork in place. Fister, for instance, underwent a DNA test along with his daughter at the US Consulate, for the child’s birth certificate. This was followed by an interview at the Foreign Registration Office at Purani Haveli for the child’s visa. At this point even the surrogate mother was also interviewed and her consent taken.

Benhur Samson, a native of Hyderabad and now based out of Chicago, is the CEO of Surrogate Abroad Inc, and has handled 26 cases so far. He says that a lot of people were going back from India disappointed, with nobody to finetune their search for a good clinic or even their stay here. And this is where he steps in. The flourishing business aside, legal eagles like G R Hari, partner, Indian Surrogacy Law Centre, Chennai, say that several surrogacy cases have landed in various courts and legal opinion should be taken before any international couples take a womb on rent in India.

Indiana court to decide in vitro baby’s legal mother

by ⋅ 1 Comment

The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy.

A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using a legally wedded couple’s gametes. The child was carried by the wife’s sister. On birth of the child, the name of the mother was left vacant and only the name of the father was filled. The Couple applied to the Indiana Court for a declaration that the wife should be declared to be legal mother of the child and that her name should occupy the mother status in the birth certificate. The surrogate mother too filed an affidavit in support of their petition. But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.” Attorney Steven Litz applied the Court of Appeals to intervene, challenging the constitutionality of Indiana’s paternity law because it allows men — but not women — to establish legal parenthood. Such similar stand was taken in Arizona and Maryland Court where the similar paternity laws in surrogacy situations were inadequate to deal with reproductive technology. The Judges clearly did not want to delve into constitutionality aspects and were looking for a simpler solution for the whole problem. The matter is still pending.

The same question is arising in every country where surrogacy is permitted. Who is the legal mother of the child? The similar facts of the Jan Balaz Case was purpose of Nationality/Citizen. So is similar the British Nationals case which was handled by me. The solution for this legal problem can be arrived only with a comprehensive legislation dealing with the intricate issues of surrogacy. The much larger issue of international surrogacy calls for a international treaty concerning surrogacy.

Indiana court to decide in vitro baby’s legal mother

by ⋅ 1 Comment

The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy.

A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using a legally wedded couple’s gametes. The child was carried by the wife’s sister. On birth of the child, the name of the mother was left vacant and only the name of the father was filled. The Couple applied to the Indiana Court for a declaration that the wife should be declared to be legal mother of the child and that her name should occupy the mother status in the birth certificate. The surrogate mother too filed an affidavit in support of their petition. But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.” Attorney Steven Litz applied the Court of Appeals to intervene, challenging the constitutionality of Indiana’s paternity law because it allows men — but not women — to establish legal parenthood. Such similar stand was taken in Arizona and Maryland Court where the similar paternity laws in surrogacy situations were inadequate to deal with reproductive technology. The Judges clearly did not want to delve into constitutionality aspects and were looking for a simpler solution for the whole problem. The matter is still pending.

The same question is arising in every country where surrogacy is permitted. Who is the legal mother of the child? The similar facts of the Jan Balaz Case was purpose of Nationality/Citizen. So is similar the British Nationals case which was handled by me. The solution for this legal problem can be arrived only with a comprehensive legislation dealing with the intricate issues of surrogacy. The much larger issue of international surrogacy calls for a international treaty concerning surrogacy.

Indiana court to decide in vitro baby’s legal mother

by ⋅ 1 Comment

The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy.

A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using a legally wedded couple’s gametes. The child was carried by the wife’s sister. On birth of the child, the name of the mother was left vacant and only the name of the father was filled. The Couple applied to the Indiana Court for a declaration that the wife should be declared to be legal mother of the child and that her name should occupy the mother status in the birth certificate. The surrogate mother too filed an affidavit in support of their petition. But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.” Attorney Steven Litz applied the Court of Appeals to intervene, challenging the constitutionality of Indiana’s paternity law because it allows men — but not women — to establish legal parenthood. Such similar stand was taken in Arizona and Maryland Court where the similar paternity laws in surrogacy situations were inadequate to deal with reproductive technology. The Judges clearly did not want to delve into constitutionality aspects and were looking for a simpler solution for the whole problem. The matter is still pending.

The same question is arising in every country where surrogacy is permitted. Who is the legal mother of the child? The similar facts of the Jan Balaz Case was purpose of Nationality/Citizen. So is similar the British Nationals case which was handled by me. The solution for this legal problem can be arrived only with a comprehensive legislation dealing with the intricate issues of surrogacy. The much larger issue of international surrogacy calls for a international treaty concerning surrogacy.

Indiana court to decide in vitro baby’s legal mother

by ⋅ 2 Comments

The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy.

A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using a legally wedded couple’s gametes. The child was carried by the wife’s sister. On birth of the child, the name of the mother was left vacant and only the name of the father was filled. The Couple applied to the Indiana Court for a declaration that the wife should be declared to be legal mother of the child and that her name should occupy the mother status in the birth certificate. The surrogate mother too filed an affidavit in support of their petition. But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.” Attorney Steven Litz applied the Court of Appeals to intervene, challenging the constitutionality of Indiana’s paternity law because it allows men — but not women — to establish legal parenthood. Such similar stand was taken in Arizona and Maryland Court where the similar paternity laws in surrogacy situations were inadequate to deal with reproductive technology. The Judges clearly did not want to delve into constitutionality aspects and were looking for a simpler solution for the whole problem. The matter is still pending.

The same question is arising in every country where surrogacy is permitted. Who is the legal mother of the child? The similar facts of the Jan Balaz Case was purpose of Nationality/Citizen. So is similar the British Nationals case which was handled by me. The solution for this legal problem can be arrived only with a comprehensive legislation dealing with the intricate issues of surrogacy. The much larger issue of international surrogacy calls for a international treaty concerning surrogacy.

US Consulate denies American citizenship to child

by ⋅ Leave a Comment

I learn from a news report, Times of India, Chennai Edition dated January  25th 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.

US Consulate denies American citizenship to child

by ⋅ Leave a Comment

I learn from a news report, Times of India, Chennai Edition dated January  25th 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.

US Consulate denies American citizenship to child

by ⋅ Leave a Comment

I learn from a news report, Times of India, Chennai Edition dated January  25th 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.

Law Commission Writes on Surrogacy

by ⋅ 37 Comments

I have been forced to ban myself off the blog for a few days due to a very hectic work schedule and too much travel. However, here I am back a wonderful news that’s going to bring a smile on anyone’s face who’s reading this.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.

When is the right time for having a Surrogacy Agreement with the Surrogate?

by ⋅ Leave a Comment

This is one of the most frequent questions I answer during my meetings with the Intended Parents. Though the answer seems quite simple, the consequence of missing the right time to sign a surrogacy contract is quite a serious problem to the whole surrogacy program. Indian Surrogacy Law Centre recommends the right time to enter into a surrogacy contract with the surrogate is when the following four aspects have been finalized,

(a) the choice over the surrogate mother

(b) the choice over the Clinic

(c) the financial element, with regard to the compensation to the surrogate

(d) The dates for commencing the procedures at the hospital has been fixed.

Once all the above factors have been determined, it is the right time for entering into a surrogacy agreement. The surrogate should have a clear understanding of the agreement and there should be also some evidence for the same.

Importance of the time factor:

The date of signing of the surrogacy contract plays an important role is assessing the mind of the parties to the contract. It is important that the surrogate enters into the contract before the taking up of the medical procedures. The reason is that the medical procedures itself is a result of the contract entered between the parties, and this order of events cannot be rearranged. There have been cases where clinics do not stress on the need for signing of an appropriate agreement with the surrogate before carrying out the procedures. However, this practice does not serve any purpose.

More importantly, the effect of not signing of a surrogacy agreement at an appropriate time has an adverse inference over the agreement. In such cases, the obvious question the Court poses to a person who relies on the agreement is as to why the agreement was not entered with the surrogate before she had taken up the medical procedures.

Therefore it is important to have the surrogacy agreement entered by the parties before proceeding with the medical procedures.