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COURTS ON SURROGACY ( Research Paper By Advocate Abha Malhotra

COURTS ON SURROGACY

 

INTRODUCTION :

Before I travel to how Courts have reacted in various jurisdictions, One needs to understand that each country has courts which can exercise their inherent powers within their own respective jurisdictions. However, a global consensus needs to be reached for an effective control of this issue.

There is no Global consensus on Surrogacy. The predominance of Laissez faire has resulted in an emergence of an industry of sorts. WHO estimates that one in ten couples from the developed world encounter fertility problems. India, Greece, eastern Europe, Russia and Ukraine in particular cater to this demand. Human Rights are involved.   Article 12 of the European Convention 20 and Article 23(2) of International Covenants guarantees the right of men and women of marriageable age to marry and to found a family which includes wife and children.

Right to found a family is an equal and inalienable right under the Universal Declaration of Human Rights.  Other than the Hague Convention, no other conference, that I am aware of has surrogacy on its agenda. There is a need for a Convention governing international surrogacy akin to the 1993 Inter Country Adoption Convention which governs international adoptions is long overdue.

Truth be told, When I began researching, I was confused from where to begin.  So I decided to begin from the very beginning.  Before I discuss the Courts I would like to share a Biblical story.  In Genesis Chapt 21. Abraham who is called a ‘friend of God was told by God, that he would have as many heirs as the stars in the sky.  Yet, he continued childless till he was 99 years old.  Despite being nearly 100, he had faith in the promise of God. His wife Sarah offered her maid Hagar, to bear him a son.  Hagar’s son Ishmael is believe to be the father of the Muslim race and Sarah herself bore Isaac, when God “blessed” her; when Abraham was 100 years old.  Isaac is maintained as the true descendent of Abraham amongst the Christians.  The point here is not to start religious debates but acknowledge that even the scriptures show that surrogacy has long term ramifications.

But the point to note is the souring of relationship between Sarah and Hagar and Isaac and Ishmael so, even the Bible recognises that surrogacy is a complex issue with far reaching implications.  

Today there is a religious and doctrinal objection to the very concept of surrogacy. Almost all religions have instances of surrogacy but they have not been sanctified.

 

 Now I Come to the Moot Point That Is:

COURTS ON SURROGACY

IN U.K.

UK was among the pioneers to legislate on surrogacy.

The Surrogacy Arrangements Act, 1985 was rushed through Parliament as a reaction to the “Baby Cotton Case”. One of the first cases of surrogacy to catch everyone’s attention.

Kim Cotton, a British mother of two agreed to have a baby for an infertile Swedish couple for £6500.

The arrangements or deal as we call it was brokered through an American Agency.

Mixed emotions at the time of giving up the baby created a media furore. She made statements to media saying she felt cheated and heartbroken giving up her baby to a couple she never met. The Courts upheld the Surrogacy agreement. The Surrogacy Arrangements Act, 1985 was legislated which prohibited advertising and allied commercial aspects of surrogacy.

Thereafter, The Human Fertilisation & Embryology Act, 1990 was passed by the British Parliament which provided, inter-alia, that Surrogacy arrangements were unenforceable but created a legal mechanism through parental orders for ratifying surrogacy arrangements retrospectively where the baby had been handed over and everyone was in agreement. Thus, in UK, Parentage followed surrogacy and everyone involved lived in a legal limbo till the baby was actually handed over to the intended parents.

Secondly, Companies were banned from brokering agreements between intended couple and potential mothers.

From 2008 onwards, interestingly, UK High Court began ratifying international surrogacy cases.

This because of the case of Re X and Y . This case involved British parents who had conceived through a married Ukranian Surrogate.  Although the UK law treated the Ukranian surrogate and her husband as the legal parents, Ukranian Law, held the genetic parents, i.e., the UK couple to be the real parents, creating another media furore over children, who were born “stateless and parentless”. Adopting the principle of the “best interest of the children”, the UK Courts started ratifying international surrogacy cases.

In one of the latest cases from United Kingdom, the surrogate identified as S, said she entered into an artificial conception agreement with the man which would see her acting as the “Mani Parent and Carer”.  That was disputed the child’s genetic father, H, who said the agreement was that he and his male partner, B, Co-Parent” the girl, with the woman continuing to “Play a Role”.

The U.K Court held that although “Agreements” are not binding in the Courts of England and Wales, the Courts have a wide discretion to act in “the best interest of the child” and parents applying to uphold a Surrogacy arrangement.  However there are no guaranties.

Another fascinating case from U.K related to a woman who acted as a surrogate mother for a baby whose biological father is her own adult son.  The family Court was candid enough to admit that it had never encountered such a surrogacy arrangement before, but held it to be “entirely lawful” and that if had been entered into after “Careful Consideration”.  Again the Court used the best interest principle to validate the, agreement stating inter-aila that the child’s “Lifelong Welfare” made the Court allow the man to adopt the child to provide the child “Legal Security”.

While researching case from U.K., I came across the case against Louise Pollard a U.K citizen, who had agreed to carry a child for Omar Bin Laden (Son of Osama Bin) Laden & his wife Zaina.  She was prosecuted & Jailed for faking pregnancies in furtherance of surrogacy agreements.

 

COURTS IN U.S.A

 

Surrogacy laws in the USA can be complicated as different states have different laws.

California heads the way in terms of acceptability and ease for surrogacy.

IN CALIFORNIA

In Johnson V. Calvert the Supreme Court of California in 1993 stated that a surrogacy contract was enforceable and commissioning parents had all parental rights over the child and not the surrogate.  Any conflict regarding parentage was to be basis of the intention of the parties at the time of agreement. Payments made in surrogacy agreements are for services rendered and not compensation or consideration for transfer of parental rights.  This decision has been highly criticized.

In the case of Re Marriage Moschetta the California Court of Appeals awarded parental rights to the surrogate because the commissioning parents got separated.

The 1998 case of the marriage Buzzanca is an example to how complex the facst in surrogacy cases can get. In Buzzanca, a gestational surrogate was impregnated using an anonymous egg and anonymous sperm. In other words, one could identify six individuals as having the potential to be alegal parent of the child: the egg donor, the sperm donor, the intended mother, the intended father, the gestational mother or the husband of the gestational mother. Ultimately, the court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the intended parents are the lawful parents of the child.

In 1999, in the cases of Drewitt- Barlow vs Bellamy, the same sex couple from Essex UK who petitioned the Supreme Court of California for both their names to be assigned to their unborn twin babies birth certificates when they were born as Parent1 and Parent 2, was won. This was a landmark case that paved the way for same-sex couples to be named on their babies birth certificates.

Finally in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elis B. V Superior Court, Kristine H. V Lisa R. And K.M. v E.G. The court held that, under the Uniform Parentage act, two women can be legal parents of a child produced through surrogacy. the ruling presumably applies to all members of the LGBT community.

 

Now in all cases where a surrogate gives birth to a child for another couple or person, the California office of vital records will only the intended parents name(s) to go on the birth certificate if the certificate is accompanied by a Superior Court judgement naming the intended Parent(s) as the legal parent(s) of the child. Without such a judgement, the surrogate’s name (if she is married, her husband’s name) must go on the birth certificate. Because the birth certificate must be registered  with the vital records within ten days of the birth, the judgment should be presented to the birth records department of the hospital at the time of birth. As practical matter, the judgment should be obtained no later than twenty weeks into the pregnancy. The practical reason for this advice is that after twenty weeks vital records will require either a certificate of birth or foetal death, both of which require the parent’s name(s).

 

ON THE OTHER END OF THE SPECTRUM IN THE USA IS NEWYORK

 

NEW YORK

 

Since 1992, surrogate parenting contracts in New York have been seen as void, unenforceable and contrary to public policy. The main reason for this is because surrogacy contracts have been interpreted to involve, in the words of one New York court, the, “trafficking of children”.  The Statute defines surrogate parenting contracts as agreements in which a surrogate agrees to be either impregnated with the fertilized ovum of another woman of artificially inseminated; and further agrees to consent to the adoption of the child born as a result of the impregnation or insemination.  Parties to surrogate parenting contracts involving compensation are subject to civil penalties of up to $500.  The stiffest penalties, fines of up to $10,000 and forfeiture of fees received in connection with such contracts, are levelled against those who arrange compensated surrogacy contracts for profit.  Repeat violators of the Statute may be charged with a felony.

 

HOLDING A MIDDLE GROUND IS FLORIDA

 

FLORIDA SURROGACY LAW

 

Florida law explicitly allows both Gestational Surrogacy agreements and Traditional Surrogacy, but neither is available to same-sex couples.  This is because the Florida Gestational Surrogacy Statutes impose strict requirements on the contracts, among them limiting involvement to, “couples that are legally married [which then prevents same-sex couples from being allowed to use surrogacy as they are not legally married] and are both 18 years of age or older”.

 

NOW, TEXAS WITH THE PRACTICAL APPROACH

 

TEXAS SURROGACY LAW

 

Texas’s law is modelled after Part 8 of the Uniform Parentage Act of 2002. A Gestational Surrogacy agreement must be validated by the court.  It is against the law for the gestational mother to use her own eggs.  To be a Surrogate Mother; she must have had at least one prior pregnancy and delivery.  She will maintain control over all health-related decisions during the pregnancy.  The Intended Mother must show that she is unable to carry a pregnancy of give birth.  The Intended Parents must be married and must undergo a home study.  There is a residence requirement of at least 90 days for either the gestational mother or the Intended Parents.   An agreement that has not been validated is not enforceable, and parentage will be determined under the other parts of Texas’s Uniform Parentage Act.

 

VIRGINIA SURROGACY LAW

 

 Virginia requires pre-authorization of a surrogacy contract by a court.  If the contract is approved, then the intended Parents will be the legal parents.  If the contract is voided, the Surrogate Mother and her husband, if any, will be named the legal parents and the Intended Parents will only be able to acquire parental rights through adoption.  If the contract was never approve, then the surrogate can’t file consent from relinquishing rights to the child. But if she does not, the parental rights will vary based on whether either of the Intended Parents have a genetic relationship to the child.  Depending on the circumstances, they may need to adopt in order to obtain parental rights.  Notwithstanding all of the above, if the surrogate is the genetic mother, she may terminate the contract within the first six month of pregnancy.

States in America permitting Surrogacy or which are favourable towards it are :

 

  • Arkansas
  • Connecticut
  • Illinois
  • New Hampshire
  • Tennessee
  • Virginia

 

States forbidding or against Surrogacy:

 

  • Arizona
  • Delaware
  • District of Columbia

 

    • Indiana

 

  • Louisiana
  • Michigan
  • Nebraska

 

States which do not have any law, but where courts are favourable are :

    • Alaska

 

  • Colorado
  • Alabama
  • Georgia
  • Hawaii
  • Idaho
  • Mississippi

 

  • Montana
  • North Caralina
  • Rhode Island
  • South Dakota
  • Lowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Missouri
  • New Mexico
  • Oklahoma
  • South Carolina
  • Vermont

 

States permitting Gestational Surrogacy but not Traditional:

 

  • Nevada
  • New Jersey
  • North Dakota
  • Utah

 

States having two views about Surrogacy:

  • Kansas
  • Kentucky
  • Ohio
  • Pennsylvania

State allowing only uncompensated Surrogacy:

  • Washington

COURTS IN AUSTRALIA

In Australia, the view of the courts on best interest of the child is highly in favour of the surrogate mother.  In Re Evelyn, the court decided that the child should be with the surrogate mother because bonding with the biological and natural mother will be in the ‘best interest of the child’ in the long term.

We see here that in both America and in Australia, the test used to decide issues of parental right is that of “best interests of the child” which draws a cloak over all complex matters since it seems to be the most decisive factor regardless of whether the agreement is valid or not.  In Re Baby M, though the agreement was held to be invalid the child was still given to the intended parents by applying the test.  It’s clear that the United State does not consider it a contract issue because otherwise in the case of Re Marriage Moschetta, even though the parents got separated the contract should have still been binding and enforceable.  It is unfair because it goes against the contract.  Furthermore, if parents do not forfeit a biological child on divorce, then why should they be allowed to abandon a foetus?

The verdict in Re Marriage Moschetta is exactly the opposite of that in Baby Manji Yamada where the contract gained precedence over everything else and the baby was given to its intended parent even after the couple got separated.

 

If the 1988 Baby M case in the US forced many to put on legal thinking caps, then that year also saw Australia battling with societal eruptions over the Kirkman sisters’ case in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie. The baby girl, called Alice, was handed over to Maggie and her husband at birth. This sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement unenforceable and any payment for soliciting a surrogacy arrangement is illegal.

In light of the above mentioned arguments it becomes clear that more than an issue of contract, commercial surrogacy in an issue of rights, mainly, the rights of the intending parents, the rights of the donors, the rights of the surrogate mother and last but definitely not the least, the rights of the child.  It is also an issue of Human Rights because of the cramped and heavily controlled living conditions of the surrogate mothers.
COURTS IN THAILAND

Coming closer home. Let’s see the court’s view in our neighbouring Asian country “Thailand”.

Before the Baby Gammy case, Thailand, like India was so to speak, a hub for surrogacy.

Baby Gammy and his twin sister Pipah were born in Thailand in December 2013 to surrogate mother Pattaramon Chanbua, using Australian man David Farnell’s sperm and donor eggs, after Mr Farnell and his wife Wendy were unable to conceive a baby.  The Farnells returned to Australia with Pipah in February 2014 and Ms. Chanbua sought orders from Western Australia’s Family Court to have Pipah returned to her.

The case caused a furore when it was claimed the Farnells had abandoned Gammy, who had Down’s syndrome, in Thailand.  But in his judgment, Chief Justice Stephen Thackray of Australian found the Farnells did not abandon Gammy, and had wanted to keep him.  However, at some time during the pregnancy, “it is clear that Mrs Chanbua had fallen in love with the twins she was carrying and had decided she was going to keep the boy”.  When civil unrest broke out in Bangkok in early February, the Farnells were advised by Australian embassy staff to leave the country.  With Ms Chanbua refusing to give up baby Gammy, who was still in hospital, the Farnells left with Pipah and “returned to home in Bunbury, which they had set up for two babies,” Judge Stephen Thackray said.  “Although they were home, they were petrified the authorities might come to retrieve Pipah.  They were also traumatised as a result of leaving Gammy behind.”  

Justice Stephen Thackray said the case “should also draw attention to the fact that surrogate mothers are not baby-growing machines, or ‘gestational carriers’.  “They are flesh and blood women who can develop bonds with their unborn children.

INDIA:

Other than the Indian Contract Act, there is no Law as such, on surrogacy in India.

The Indian Council for Medical Research gave some Guidelines in 2005, regulating Assisted Reproductive Technology procedures.

The Law Commission of India in its 228th report also made some observations including points like the arrangement should not be for commercial purposes and that the surrogate should get the benefit of life insurance cover etc.

The Assisted Reproductive Technology Bill , 2013 is awaiting to be passed by the Parliament.

On 29.09.2008, the Supreme Court of India in Baby Manji Yamada Vs. UOI & Anr. Delivered a judgement by Justice Arijt Pasayat & Justice Mukundakan Sharma.

This is considered a land mark case in India and is also known as The Japan Baby Case because in this case the Japanese couple, Dr. Ikufumi Yamada and his wife desired to have a baby and choose a surrogate mother in Anand, Gujarat. The Supreme Court took pains to define the three types of surrogacy while dealing with  production/custody of a child Manji Yamada; given birth by a surrogate mother in Anand, Gujarat under a surrogacy agreement with her entered into by Dr Yuki Yamada and Dr Ikufumi Yamada of Japan. The sperm had come from Dr Ikufumi Yamada, but egg from a donor, not from Dr Yuki Yamada. There were matrimonial discords between the commissioning parents. The genetic father Dr Ikufumi Yamada desired to take custody of the child, but he had to return to Japan due to expiration of his visa. The Municipality at Anand issued a birth certificate indicating the name of the genetic father. The child was born on 25.07.2008 and moved on 03.08.2008 to Arya Hospital in Jaipur following a law and order situation in Gujarat. The baby was provided with much needed care including being breastfed by a woman.

The grandmother of the baby Manji, Ms Emiko Yamada flew from Japan to take care of the child and filed a petition in the Supreme Court under article 32 of the Constitution. The Court relegated her to the National Commission for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act 2005. Ultimately, baby Manji left for Japan in the care of her genetic father and grandmother, because under Indian laws, a minor baby is allowed to travel on a mother’s passport.

The Supreme Court noted with disapproval, the absence of legislation in the country qua surrogacy.  The Apex Court directed that The National Commission for child rights was the appropriate body to deal with this issue.  The Supreme Court further held ‘inter-alia’ that the father was the genetic father of the child and was given custodial right of the child. The most noticeable feature of the judgment is that the stance of the Court, while a upholding the surrogacy agreement was pro contract.

 

Jan Balaz vs. Anand Municipality

More recently in the matter of Jan Balaz Vs. Anand Municipality, a German couple entered into a contract with a surrogate mother named Marthaben Immanuel Khrishti.  Twin children were born.  The German couple was working in the United Kingdome and the children required Indian passports to travel.  Since their citizenship was being litigated in the courts, the passport authorities withheld the passports.  Germany, the parent state of the German couple did not recognize surrogacy.  The Supreme Court of India, denied the passports but granted an exit permit to the children and the German authorities decided to give the couple and opportunity to adopt the children and fight for their rights.

The Supreme Court of India also recommended again the emergent legislation of a law on surrogacy.  The Bench headed by Justice G. S. Singhvi and Justice C. K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard who were already two years of age by the time this decision was made and had still not been granted citizenship in any country.

 

In both the above cases, the Indian Supreme Court took a very pro contract stand.

However as far as India goes, the Indian Contract Act is rather inadequate to deal with the issues of Surrogacy, the precautions, guidelines and conditions that must be laid down to ensure the best interest of the child. For instance are damages ensuing from a breach of such contract enough? What would happen to the child?

Secondly, there is an unequal balance of power.

Thirdly, certain other Acts would need to be overhauled.

For example. The Citizenship Act of India does not accord citizenship to a child borne out of Surrogacy. Are the courts equipped to be inundated by such issues. Should a legal system not be put in place by the parliament?

Fourthly, a condition needs to be stipulated that surrogates have to have had a baby of their own earlier, so that they realize that bonding can be very strong even with an unborn child.

Fifthly, commercialisation needs to be checked on Surrogacy should not be encouraged to improve one’s living standards, as has been noted in Anand in Gujarat. I am told that Naxals use village girls some as young as 14-15 as surrogates to produce human bombs. However, I haven’t found anything in black and white qua the same. It is a disturbing thought to say the least. Something needs to be done to nip this practice in the bud. I doubt if a piece of legislation would be a deterrent to such people; But at least, it would be a start.

Sixthly, a child’s right to know parenthood is affected as was seen in a case from Michigan in USA. The American Courts, both trial and appellate refused to allow the case to proceed because of the marital presumption, similar to the stipulation under section 112 of the Indian Evidence Act. This aspect of legitimacy has been addressed in the upcoming ART Bill.

Another point that needs to be flagged is consequent amendments to the Service Rules etc.

For instance, just last year, Justice Rajiv Shakdher of the Delhi High Court used the “updating principle” as a legal technique, relying on English Case Law to allow “maternity leave” to the petitioner, who had been asked to apply for child care Leave by the Union Government. Justice Shakdher held, inter-alia, that since the CCS Rules, drafted in 1972 did not define “maternity” ; the position of a commissioning mother was equated with a biological mother and leave should be granted to her to be able to bond with the unborn child. A similar case with a similar finding was dealt with by a Division Bench of the Bombay High Court in favour of a Central Railway Employee.

 

In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty similar to that of India.

 

Thereafter,  in the news was the Israeli gay couple’s case. The gay couple Yonathan and Omer could not in Israel adopt or have a surrogate mother. They came to Mumbai. Yonathan donated his sperm. They selected a surrogate. Baby Evyatar was born. The gay couple took son Evyatar to Israel. Israeli government had required them to do a DNA test to prove their paternity before the baby’s passport and other documents were prepared.

 

The legal issues related with surrogacy, as we have seen, are very complex and need to be addressed by a comprehensive legislation, not a stand alone Act. The draft Bill contains 50 clauses under nine chapters.

Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of 24 positive entitlements. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.

The draft Bill prepared by the ICMR is full of lacunae, nay, it is incomplete. However, it is a beacon to move forward in the direction of preparing legislation to regulate not only ART clinics but rights and obligations of all the parties to a surrogacy including rights of the surrogate child. Most important points in regard to the rights and obligations of the parties to a surrogacy and rights of the surrogate child the proposed legislation should include may be stated as under:

CORRECTIVE MEASURES

  • There is an urgent need of national and international debate on inter-country surrogacy issues with an integrated and inter-disciplinary outlook.
  • IVF, AIH, AID, ART and surrogacy clinics should be under strict supervision and control of the special machinery appointed by the State.  Accreditation Authority. Such machinery should be given all powers to regulate surrogacy agreements on par with Central Adoptive Resource Agency (CARA).
  • Every application for surrogacy must be routed through the respective Governments, to which the Commissioned Parents belong.
  • There may be cases, where a single parent, male or female, has a moral justification to go for surrogacy. A spouse who has lost his/her married partner may like to have a child through surrogacy to perpetuate the memory of the dead spouse. However, single parent surrogacy requires strict monitoring, keeping in view the best interests of the child. Surrogacy by AID should be banned because in this case, both the commissioned parents are sterile; therefore they have to take the help of Semen Donor and Surrogate Mother. This is a clear case, in which neither of the commissioned parents has any biological and emotional cord with the surrogate child. For such couple, the only option is, to go in for adoption.
  • The Indian Draft Bill on ART 2008 needs reconsideration before it becomes the law of the land.

 

In conclusion, it is submitted that, the very concept of surrogacy and its wide spread prevalence in many parts of the world, poses a challenge to inventive creativity of socio-legal policy makers. Certain amount of commercialization is inevitable in the nature of the things because of the anxiety of rich commissioned parents to have children, the readiness of the poor and needy surrogate mothers to rent their womb for monetary consideration and the role of predominantly private commercialized fertility clinics.

However, while it is impossible to resist the waves of technological changes, ushered in by the concept of surrogacy, the society should adapt itself to the changes and manage the change in terms of the prevailing social values. A line of demarcation between commercial and non-commercial aspects of surrogacy should be drawn by the lawmakers of the respective countries by drawing inputs from the social values prevailing in those countries. Every care should be taken to eliminate the role of touts and brokers in surrogacy cases. Fertility clinics should also come under the Government scanner to have a check in respect of specific methods, used for fertilization, medication, pre-natal and post-natal care.

A step in this direction was taken by the Hon’ble Supreme Court Of India, when in the Jan Balaz Case, wherein the Union of India had filed an appeal in 2010, in November 2015, the Hon’ble Supreme Court of India, while accepting the policy as per the Affidavit of Ministry of Home Affairs, directed, inter alia, that :

  1. Import of human embryos have been prohibited except for research purposes.

 

  1. No visa should be issued by the Indian mission/posts to foreign nationals intending to visit India for commissioning surrogacy.

 

  1. No permission should be granted by the Foreigners Regional Registration Officerss (FRROs)/Foreigners Registration officers (FROs) to Overseas Citizen of india (OCI) cardholders to commission surrogacy in India.

 

These directions were to be notified by the Government to the existing Surrogacy Clinics. The surrogacy agreements commissioned prior to 4/11/2015, the date of the order,  are to be reviewed on a case to case basis.

This order by a bench comprising of Justice Ranjan Gogoi and Justice N V Raman has put an effective ban on foreign nationals coming to India for surrogacy. Despair has been noted by the ban especially in Surrogacy hubs like Anand. An online petition has also been started against the ban by Rekha Patel of UK who had a baby in Anand.

In conclusion, I simply want to say this, that a comprehensive holistic, International agreement or treaty needs to be signed.  As of today, there is no International Consensus on how to establish and contest legal parentage in these new circumstances.

As we have seen in many cases, when families cross borders with increasing frequency, these differences in States’ domestic laws can give rise to complex questions of private International Law concerning the establishment or recognition of Children’s legal parentage.

For instance, Like Australia, in Canada, Portugal, Japan and New Zealand only altruistic surrogacy is legal. In Quebec, Canada even altruistic surrogacy is illegal.

In countries like France, Iceland, Italy and even Pakistan both altruistic and commercial surrogacy is illegal.

Israel has legalised only gestational surrogacy.

Ireland has no law on the subject and Sweden also surrogacy is not regulated by law.

The European Court of Human Rights support surrogacy.

These questions implicate children’s fundamental Human Rights ( See Articles 7 & 8 of the U N Convention on the Rights of the Child.) It is a global business with global implications on human rights which need to be addressed.

The Hague Convention is working towards this end and having annual Conference to address these concerns since 2011, but nothing has yet concretized out of it.

Bibliography:

  1. Supreme Court Of California, 5th Cal. 4th 84( 19 Cal Reptr. 2d 494, 851P2d 776 (1993))

The Assisted Reproductive Technologies (Regulation) Bill, 2010: A case of           Misplaced Priorities?   By Priyattam Bhanj

 

  1. The Assisted Reproductive Technology Bill, 2013

 

  1. AIR (SCW) 2008 P 6964 [Baby Manji Yamada Vs. Union Of India & Anr.

 

  1. Civil Appeal No(s). 8714/2010 (Supreme Court Of India) Union of India & Anr. Vs. Jan Balaz & Ors. With WP (c) No. 95/2010

 

  1. Rama Pandey Vs. Union Of India & Ors. [W.P.(C) No. 844/2014]

 

  1. Commercial Surrogacy – The Need for Regulation : BY Shriya Misra

 

  1. The Wire (07/12/2015) : The Surrogacy Conundrum that Indian Law needs to Resolve by Akhileshwar  Pathak

 

  1. Surrogacy Laws in the USA & the UK by BSC Egg Donation and Surrogacy Centre

 

  1. The Hindu (Nov. 29, 2015): A Setback For Surrogacy In India? By Bindu Shajan Perappadan

 

  1. NEWS : Baby Gammy: Surrogacy row family cleared of abandoning child with Down syndrome in Thailand

 

  1. Socio-Legal Aspects of Surrogacy In India by Jaya Kumar F. Dr. Yegudala; Osmania University,  Hyderabad

 

  1. The Guardian (6 May 2015) : High Court orders surrogate mother to hand baby to gay couple : by Damien Gayle and Press Association

 

  1. Surrogacy Laws by Country [https://en.wikipedia.org/wiki/Surrogacy_laws_by_country]

 

  1. The Associated Press (2007-12-30). “India’s surrogate mother business raises questions of global ethics. Daily News.

 

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