This article was written by Gauri Jaiswal, B.A.LL.B Hons, 9th sem, CMP Degree College (University of Allahabad) during her Internship at LeDroit India.
Keywords
Surrogacy, parental rights, altruistic, gestational, surrogate mother, surrogate child, intended parents
Abstract
Surrogacy is the practise where a woman carries an embryo and delivers the baby for another person or couple. It can be when the egg and sperm is donate and embryo is made via IVF technology and thereby it is implanted in the womb of the surrogate mother or in traditional surrogacy the egg can be of the surrogate mother and the sperm can be of the intended father. Some countries hold commercial surrogacy as legal considering the reproductive layout of the surrogate mother while others hold it illegal and only allow altruistic surrogacy with strict conditions keeping jn view the possible risk of exploitation and ethical practices of the country. The major issue that arises after surrogacy is the parental rights and it begins more complicated in case of cross border surrogacies. Some counties require parentage orders from the courts of law to determine the parental rights while some give this right to the intended parents provided that the consent of the surrogate mother is sought. Surrogacy agreements are enforceable by law in some counties whereas in some it is non enforceable. In UK the parental rightvis granted to the surrogate mother and then it can be transferred to the intended parents by way of court order or adoption. In countries like India and USA homosexual couples can also get a baby through surrogacy whereas in country like Russia only heterosexual couple and single woman can get involved in surrogacy arrangements.
Synopsis
Introduction
Types of Surrogacy in terms of finance
Surrogacy and parental rights in India
Parental Rights in case of surrogacy in USA
Parental Rights in case of surrogacy in UK
Parental Rights in case of surrogacy in Germany
Parental Rights in case of surrogacy in Russia
Challenges in cross border surrogacy
Conclusion
References
Introduction
Surrogacy is a reproductive practise wherein a third-party is contracted as a surrogate mother by the intending parents to give birth to a child. Simply put, surrogacy is carrying and giving birth to a child for another parent or couple.1 Surrogacy is aimed at helping people who are incapable of conceiving or having a child. One of the major legal issue that revolves around surrogacy is the determination of parental rights or as to who will be considered as the parent of the child born out of surrogacy. There are two kinds of surrogacy, one is gestational where the intended mother’s egg and intended father’s sperm is used and the surrogate just carries the embryo and delivers the baby whereas in the other, the egg is of the surrogate mother and the sperm is of the intended father which is known as traditional surrogacy.2
Types of Surrogacy in terms of finance
There are two types of surrogacy one is altruistic and the other is commercial.
Altruistic surrogacy: In this type of surrogacy agreement the surrogate does not receive any monetary compensation from the intended parents for the reproductive labour other than the essential finances incurred during pregnancy like medical expenses and insurance.3
Commercial surrogacy: In commercial surrogacy an agreement is made wherein it is explicitly mentioned that some monetary compensation will be given to the surrogate as the consideration for carrying and delivering the baby.4 This is basically a service that is provided in exchange of money and it is illegal and banned in many countries like India.
Surrogacy and parental rights in India
In India surrogacy is regulated by Surrogacy (Regulation) Act,2021 and only altruistic surrogacy has been allowed while banning the commercial surrogacy citing the high potential of exploitation of surrogate mothers, ethical and moral considerations and child welfare. The intended couple must have medical necessity for gestational surrogacy and must obtain a certificate of recommendation from the board. Furthermore, only a married woman having a child of her own and in the age group of 25-35yrs shall be the surrogate mother or help in surrogacy by donating her egg.
As per the Surrogacy (regulation) Act, 2021 no woman shall act as a surrogate mother more than once in her full lifetime also the intending couple or the intending woman has to approach the authority with a woman who is willing to be a surrogate mother. According to the act the intending couple should not have any child either biologically or by way of adoption or by way of surrogacy. The act further in section 7 prohibits the abandonment of the child born out of surrogacy for whatsoever reasons.
As per it’s section 8 the child born out of surrogacy shall be the biological child of the intended parents. Therefore it can be deferred from section 8 of the above-mentioned act that the intended parents hold the parental right over the child born out of surrogacy and the surrogate mother has to give away the child as well as relinquish any right over the surrogate child. Also according to section 4 of the same act, the order of parentage and custody has to be obtained from the magistrate of first class by the intending parents, intending woman and surrogate mother. This order is in the nature of pre-birth parentage order that acts as the birth affidavit of the child upon his birth.
Parental Rights in case of surrogacy in USA
In USA the law varies from state to state, reason being the federal structure, but commercial surrogacy is popular in USA. In USA parental rights are basically obtained through court oprders in form of either pre birth parentage order, post birth parentage order or post birth adoptions.
In albama the pre birth parentage order is issued in favour of the single intended parent or intended couple granting them parental rights over the child born out of surrogacy, here the surrogate mother has no right over the child.5
In alaska post birth adaoptions are a prominent way to acquire their legal parent right over the child born out of surrogacy by the intended parents. In case of Arizona both pre and post birth parentage order can be issued provided that either both or atleast one intended parent is genetically related to the child. Califonia and Colorado being a surrogacy friendly state allows intenetd parents to obtain pre birth or post birth parentage orders as wel as post birth adoptions irrespective of marital status, sexual oriuentation and genetic relation with the child.
In case of florida pre birth parentage orders can be obtained but are not legal declarations of parentage and the intended parent has to file a petition for post birth order within 72 hours of birth to seek parental right over the child.
Parental Rights in case of surrogacy in UK
While surrogacy is legal in UK the agreements made for the purpose of surrogacy between the intended parents and the surrogate mother are not enforceable by law. Moreover only altruistic surrogacies are legal in UK and the intended parents cannot pay the surrogate except the reasonable expenses.
In UK the surrogate mother holds the Parental right over the child unless it has been transferred by way of Parental order or adoption after the child is born. Moreover if the surrogate is married or is in civil relationship then her partner is considered as the second parent to the child and any dispute regarding parental Rights is resolved through courts and courts decide the parental right considering the best interest of the child.6
Parental Rights in case of surrogacy in Germany
In Germany surrogacy is not recognised and has been made illegal and it is a criminal offence to practise surrogacy as per the embryo protection act, 1991. This criminal offence is with regards to the doctors and scientist considering surrogacy as against the ethical and moral norms. The act provides no one can implant an embryo in a woman who does not intend to keep the child with her after the birth. It’s is explicitly provided in German laws that the parental right must exist with the mother irrespective of the fact whether she’s the biological mother or otherwise. 8
Parental Rights in case of surrogacy in Russia
Surrogacy is legal in Russia only after considering the medical conditions and is available to the heterosexual couple and single woman. The parental right exist with the intended parents as per the surrogacy Agreement where the consent of surrogate mother to transfer the parebtal right has to be explicitly mentioned. The surrogacy agreements are legally valid in the Russian jurisdiction.9
Challenges in cross border surrogacy
Legal and Jurisdictional conflicts: There is lack of uniform laws that can regulate surrogacy worldwide. Where some countries promote commercial surrogacy the others have legalised only altruistic surrogacy and some counties have banned it in total considering ethical norms. There is Conflict of laws as some counties consider the intended parents as the legal parents and some recognise the surrogate mother as the legal parent. In some counties surrogacy contacts are valid and enforceable while in some it is not enforceable by law.
Citizenship and nationality issues: The child may become stateless if neither of the countries grant him or her the nationality and citizenship. Moreover there is an uncertain and lengthy process for issuance of passport and travel documents. In the case of Baby Manji Yamada, where India and Japan were involved as the intended couple was from Japan and the surrogate mother was from India, the child was stuck in India due to legal and citizenship issues involving travel documents.7
Parentage and legal recognition: Parental Rights may not automatically be recognised in the home country of the intended parents as some counties recognizes surrogate mothwrs as the legal parents and post birth parentage orders have to be obtained by the courts or the adoption has to be done to get the parental right or parentage over the child.
Exploitation and ethical concerns: In developing counties poor women may be exploited for the purpose of surrogacy by luring them by way of commercial surrogacy. Moreover surrogacy may become transactional and commodified with least safeguard for the health and rights of the surrogate mother.
Lack of international regulations: There does not exist any binding treaty that governs surrogacy on an international level which leads to difficulties in cross border surrogacies. Hague conference on private international law has ongoing discussions but there is no finalized framework yet.
Case
Jan Balaz v. Union of India (Gujarat High Court, 2009)
Facts:
German couple commissioned an Indian surrogate in Anand, Gujarat. Twin boys were born, but the German government refused to grant citizenship as Germany does not recognize surrogacy. The children were effectively rendered stateless. Indian authorities also denied Indian passports since the parents were not Indian.
Held:
Gujarat High Court ruled that the children were Indian citizens by birth under Article 5 of the Constitution. Directed authorities to issue Indian passports. The matter eventually required intervention by the German embassy and the Indian Ministry of External Affairs.
Significance:
Highlighted citizenship and nationality issues in cross-border surrogacy. Emphasized the child’s right to nationality and identity.
Conclusion
Surrogacy is a reproductive method by which those who for soon reasons cannot have a child take the help of another woman who carries the embryo and delivers the child. Some countries recognise commercial surrogacy , some recognise and allow only altruistic surrogacy considering the ethical norms and interest od the surrogate mother and to prevent exploitation of the woman and some countries have banned surrogacy. The most significant legal issue that arises after the child is born out of Surrogacy is the parental rights or who will be considered as the legal parent of the child. While some countries give this right directly to intended parents, some require post or pre birth parentage order and some consider it valid if the parentage is mentioned in the surrogacy Agreement.
References
https://www.hfea.gov.uk/treatments/explore-all-treatments/surrogacy
https://my.clevelandclinic.org/health/articles/23186-gestational-surrogacy
https://www.worldwidesurrogacy.org/blog/commercial-surrogacy-vs-altruistic-surrogacy
https://www.worldwidesurrogacy.org/blog/commercial-surrogacy-vs-altruistic-surrogacy
https://connect.asrm.org/lpg/resources/surrogacy-by-state?ssopc=1
https://www.gov.uk/legal-rights-when-using-surrogates-and-donors
https://indiankanoon.org/doc/854968
https://surrogate-motherhood.com/surrogacy-in-germany-legislation
https://www.rbmojournal.com/article/S1472-6483(10)00174-4/pdf
