CARA agrees to provide No Objection Certificate in the Jan Balaz case

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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.

CARA agrees to provide No Objection Certificate in the Jan Balaz case

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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.

Legal Audit and Risk Assessment

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We have mails pouring in from anxious intended parents worrying about their prospects of having a surrogacy arrangement in India.
“How safe is it to take up surrogacy in India as the Supreme Court of India is now considering the merits of surrogacy? What if the Supreme Court of India gives a negative verdict?” is the usual concern.
And my usual answer would be “it would be the safest way to parenthood if you are informed.”
International surrogacy arrangements (anywhere it may be) always involve legal complexities and uncertainties irrespective of the countries involved. No country in the world can claim that surrogacy in their nation is perfectly uncomplicated and without any legal hassles. The simple reason for this is surrogacy involves very basic but serious questions of law relating to citizenship, nationality, motherhood, and parentage etc. Any country would have laws with these laws forming its backbone and conflict of laws in many is natural.
However, it is most important that you are not stuck into the legal issues without even knowing the depth of it. It is most recommended that intended parents assess what might be possible issues that they might be facing if they take up surrogacy in India. They are required to assess the risk factors against them, and weight it against the positives. Some countries have an established route to take back the child but many don’t. But in all cases, it is most advisable to know your cues before proceeding.

Legal Audit and Risk Assessment
For this purpose, the Legal Audit and Risk Assessment plays a key role. Legal Audit and Risk assessment involves a comparative study of the laws of homeland of the intended parents and that of India to speculate the issues of conflict that might arise and as to tackle them. Special concern at this occurs to intended parent who are gays as the Indian Law in not uniform in may of the cases.

When should Legal Audit and Risk Assessment be taken up?
It is very important that Legal Audit is taken before surrogacy arrangement is made with a clinic in India so that you aware of the laws that would affect you and you can act in a cautioned manner. However, couples who have already crossed the implantation of the embryo stage, but are still uncertain on how to take back the child would can take up the Legal Audit and Risk Assessment.

French Court holds IP to be legal parents but denies citizenship

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Surrogacy FranceIndia 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 that 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 citizens and denied French Citizenship. The 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 French law of holding any agreement for procreation of child was presented to the Senate in January, but has yet to be discussed.

Supreme Court of India directs CARA to consider adoption plea in German’s Surrogacy Case

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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.

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

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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.

Michigan couple lose their child to surrogate mother

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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.

Why do you need an Independent Surrogacy Lawyer in India?

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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.

Choose the Right Surrogate in India

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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.