Realizing the baby dream with Surrogacy and India.
India has earned itself the sobriquet of the cradle of the world thanks to cheap medical facilities and inadequate laws.
As has been much discussed here and around the web, India is a popular destination for individuals and couples seeking to use a surrogate mother to have children. Sometimes the decision to go to India is driven by economics. Sometimes it’s motivated by inhospitable law in the home country of the commissioning parents.
The Indian law governing these arrangements has been less that clear. Coupled with uncertainty about law in the home country, this has created much legal confusion, like one recently of Israeli gay father Dan Goldberg.
Israeli gay father Dan Goldberg, stranded in Mumbai for the last three months with twin boys Itai and Liron who were born to a surrogate mother quietly celebrated a personal victory .Now Gay Israeli dad can take surrogate sons home after long legal fight.
But Surrogacy still not an option for family for Indian gays. According to the new draft ‘Assisted Reproductive Technology Regulation Bill 2010’, till gay and lesbian relationships are legalized in India, gay couples would not be allowed to have children through a surrogate.
Gay couples may not be allowed to hire surrogates in country. But if the draft bill to regulate surrogacy becomes law, gay couples like them may not be allowed to hire surrogates in India. The draft legislation, Assisted Reproductive Technology (Regulation) Bills and Rules, 2008, states that only couples that are living together and in a sexual relationship that is legal are permitted surrogacy to have children.
International or cross-border surrogacy raises serious questions of law relating to citizenship, nationality, motherhood, parentage and the rights of a child to be raised by their parents.It is for these reasons that is it important for intended parents to carefully assess the legal risks involved in surrogacy in the country the birth will occur and the country the child will be raised in.
In 2002 India had passed law making surrogacy legal in the country. In India the law states that a surrogate mother’s name is not to appear on the birth certificate and that she has no right to keep the child. Lower prices in India make surrogacy affordable by middle class Americans. Under guidelines issued by the Indian Council of Medical Research, surrogate mothers sign away their rights to any children. A surrogate’s name is not even on the birth certificate.
In the United States laws governing surrogacy and adoption vary from state to state. In India, commercial surrogacy is legal, though unregulated. Clinics draw binding contracts with the birth mothers who relinquish all rights on the baby soon after it is born and parents who commission the surrogate, such as Fister, straightaway get their names on the child’s birth certificate.
Surrogacy bill looks to protect child’s interest on both sides. Having emerged as the hottest destination for surrogacy, it is but natural for India to take the lead in evolving a law that safeguards the interests of all the parties concerned, including the child born through assisted reproductive technology.
Soon, rent-a-womb couples may have to get home country nod in their own interest. Foreigners or NRIs coming to India to rent a womb will soon have to submit two documents one confirming that their country of residence recognizes surrogacy as legal and secondly that it will give citizenship to the child born through agreement from an Indian mother.
Both conditions are reasonable as they are designed to deal with the legal uncertainties thrown up by a couple of surrogacy cases that did not pan out in the agreed manner. In the Manji Yamada case, the baby was embroiled in litigation as the commissioning Japanese parents had divorced by the time it was born in India.
And in the subsequent case involving German parents, the twins found themselves in a no-man’s-land as their country did not recognize surrogacy as a means of parenthood.
There is no way the surrogacy agreements will be enforceable unless the commissioning parents are in a position to take the child back to their country and it is accorded citizenship, which it would have automatically received had it been born to them in the natural course.
As the outsourced surrogacy or fertility tourism has become increasingly visible, it’s hardly surprising that India might consider legislation to regulate the practice of surrogacy. Of course, legal change comes slowly and apparently the draft moving forward now has been in the works for five years. I’m sure it is even more complicated because as India is now a global surrogacy center, all sorts of interests–those of prospective fertility tourists, those of people who stand to gain financially from continued surrogacy and so on–come into play in the legislative process.
Over the next decade, with more experience in this field, India may find a solution to how to regulate surrogacy. There is no certainty regarding the laws of surrogacy in India at the moment.