Adoption to the Rescue of Surrogate child

Pub. Info. – “Adoption to the Rescue of Surrogate child” by Sonali Kusum, Flair Talk , Legal Magazine , Cover story, Vol.1 , Issue 2, March 2014.

Surrogacy has become popular across the world as viable option to have child and build family for the infertile couple who may not be able to have child through normal course.

India as the hub of global surrogacy destination –

India has earned itself the epithet of being the global surrogacy capital of the world,[1] particularly Anand in Gujarat is called as the cradle of the world[2].  The confederation of Indian Industry states that surrogacy generates $2.3 billion a year.[3]  It is reported that almost half of the children born through surrogacy in India belonging to non-Indian clients or foreign intending couple. According to the Department of Immigration and Citizenship of Australia the Australians make up at least 40 per cent of the foreigner intending couple visiting India for surrogacy[4].

There are  various factors for making India the global destination for surrogacy , the cheaper cost of surrogacy Treatment  , abundant availability of poor women willing to be surrogate mother ,lack of regulations on surrogacy, easier entitlement to parenthood, waiver of custody , guardianship rights by surrogate mother , enforceability of surrogacy agreement are  attracting foreign couples to avail surrogacy in India.

India’s legal position on surrogacy-

India has legalized surrogacy since the year 2002. The landmark judgment of Baby Manaji Yamanda India legalized commercial surrogacy paving way for drafting of legal instruments for regulating  surrogacy  , the Assisted Reproductive Technology  ( Regulation) Bill  2008 which was revised leading to the Assisted Reproductive Technology  ( Regulation) Bill 2010, by the Ministry of Health & Family Welfare, Government of India,  at present it is only a  Bill awaiting its enforcement , validity and its legal binding effect.

One of the distinct feature of Indian Surrogacy is commercial and transnational  (section 34 (1) , (3) , (19) of ART Bill 2010)  nature it permits both citizens of India as well  as citizens of foreign nationals  to commission surrogacy in India   by availing the services of surrogate mother ( with or without donor gametes )  in exchange of monetary payment under a surrogacy  agreement .

Legal Issues in International or Inter country Surrogacy Arrangements –

There is no international uniform convention or treaty regulating surrogacy at international level. Different countries provide for different legal regimes on surrogacy, for instance, while India , Ukraine , California permits commercial surrogacy , UK , South Africa, Canada , Australia , ban commercial Surrogacy , Japan France, Sweden, Germany many other European nations prohibits surrogacy in all forms. thus there is conflict of the inconsistent or varying surrogacy legal regimes . Owing to such legal inconsistency , International surrogacy arrangements have a thrown up a host of legal issues non enforceability of surrogacy agreement, non registration of birth of surrogate child, non recognition of the legal documents birth certificate, non recognition of parentage rights of intending couple over the surrogate child in another nation.

Though India is considered as a hub of surrogacy , The present Indian legal instrument on surrogacy are not adequate to address the issues or concerns raised by international surrogacy arrangements . Presently in India ART Bill  2010 awaiting its enforcement  , the surrogacy agreement  made in India has no legally valid or binding effect outside the territorial limit of India. At the same time, the Government of India does grant citizenship by birth to the  surrogate child born in India to a foreign intending couple  ( section  35 (8) of ART Bill 2010 ) and  do not allow the surrogate children to be taken outside the Indian territory or back to the foreign country as India citizen.

These Foreign Intending couples face legal troubles on their way back to the foreign country starting with denial of passport, Exit visa stamping for the surrogate child  by  the foreign Embassy,  denial of parentage or filiations right to the Intending couple , birth registration of surrogate child as per their country specific laws . thus, the surrogate child faces the threat of being left behind in India  in the absence of defined parentage and citizenship.

Thus there is a legal void for securing the inter country movement of surrogate child and  for enforcing the incidental basic civil legal rights of the surrogate child.  Under such conditions,  Foreign  Embassy , Indian and international courts have heavily relied on the adoption of surrogate child  in order to facilitate the inter country movement of surrogate child thereby  safeguarding the  basic civil legal right of surrogate child

As India as well as most of the countries of the world have not only clear established laws or statutes on Adoption but most of the countries are party to Hague Convention on Protection of Children Co-operation in respect of inter country Adoption 1993 which lay down procedure for inter country adoption of children by seek to create permanent child parent relation . Besides ,the legal effect of adoption is same as that of biological child of the couple where as in case of surrogacy , the legal effect , validity to the birth of surrogate child is highly dubious as it is hit by the inconsistency in the inter country surrogacy law and absence of uniform legal mechanism for the same.

Embassy Directions, Immigration  Rules of foreign countries providing for adoption of surrogate child –

Immigration Regulations of UK   , Australia  , New Zealand provide for adoption of surrogate child born of international surrogacy arrangements by the intending couple.

Besides Adoption has been recommended by the foreign embassy as the only available measure in absence of necessary proof of establishment of motherhood or parenthood of the Foreign Intending couple over the  surrogate child .

Supreme Court of India directs Adoption of Surrogate children –

In addition to the these,  the Supreme Court (SC ) of India has provided for adoption of children born of international surrogacy arrangement as a measure to resolve the issues resulting from  the inter country conflicting surrogacy laws namely parentage right, birth registration,  citizenship of the surrogate child. There have been  two landmark cases on this point which may be mentioned here .

In  Baby Manaji Yamanda. Union of India (Writ Petition  (C) No. 369 OF 2008) –

A Japanese  couple commissioned surrogacy in India at Aanand in Gujarat by availing the service of  surrogate mother with egg  from anonymous donor and his own donated sperm , following the birth of a surrogate child Manji in India , the Japanese Embassy in India refused to grant Manji a Japanese passport or visa in keeping with the Japan civil code which states birth mother is the legal mother thus the surrogate mother is the legal mother which created further legal issues. Meanwhile, during the pendency of proceeding the couple divorced there after the ex wife did not want the child .

Considering the absence of any law on surrogacy in India, the court provided for adoption of the surrogate child manaji in India by the intending father  but this adoption of the baby girl by a single male was not permissible under Guardians and Wards Act 1890,as this law does not allow single men to adopt baby girls.

The court made a legal exception and granted birth certificate stating intending father as the legal father to the child and based on the birth certificate the Japanese authority granted passport, visa on humanitarian grounds for safeguarding the interest of surrogate child .

Secondly , in the case of Jan Balaz Vs. Anand Municipality and 6 Ors. (AIR2010Guj21)  A German couple Jan Balaz commissioned surrogacy availing  donor eggs and surrogate mother , the child was biologically related to Mr Balaz through donated sperm, resulting in the birth of two surrogate twins .  But subsequently the German consulate refused to issue passports to the surrogate child based on the German law which strictly prohibits surrogacy and does not recognize surrogacy as a means of establishing parenthood accordingly the Balaz’s had no legal filiation to the children. Eventually, the matter reached the supreme court which requested Central Adoption resource Agency,  (CARA ) is an autonomous body under the Ministry of Women & Child Development, Government of India. It deal with inter- country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003)  to make a one time  exception on humanitarian ground considering the child welfare and facilitate adoption for these twins .  Accordingly these surrogate twins were adopted by the German Couple and they were taken back to Germany

These cases open a flood gate of unresolved  legal issues as the court has not laid down  any  guidelines  but provided for adoption  as a  provisional measure for saving the surrogate child from being rendered stateless and parentless.

ART Bill provides for Adoption of Surrogate Children –

Keeping with such eventualities, even the ART Bill 2010 (Section 34 (19)  also provides for adoption of surrogate children under certain conditions by  local guardian where the  foreign intending party  fails to take delivery of the surrogate child born in India,

Thus adoption has by far appeared to be the only workable measure , but adoption may not be held to be the ultimate resolve as there contesting issues involved in the same

Analysis of Inconsistency & Impediments in Surrogacy & Adoption –

Though , Adoption as well as Surrogacy are both are means to  attainment of  right to family or  right to attainment of  Parenthood. Despite this  similarities, there are marked differences between surrogacy and adoption , surrogacy involves commercial transaction or exchange of monetary payment under a surrogacy agreement made before the birth of child for gaining custody guardianship or parentage rights over the surrogate child  where as adoption strictly prohibits the same and penalizes any such agreement providing payment for relinquishing the  custody of child , thus the fundamentally they are not only different but strictly opposing and strike at the legality . Accordingly , Hindu Adoption & Maintenance Act 1956 ( Section 17 )  not only  prohibits but penalizes such payment for adoption .

There are implicit legal issues in the applicability of adoption in surrogacy arrangements, adoption conveys  that the surrogate mother is presumed to be the legal mother of the child , thereby the surrogate mother and her husband have the legal capacity to give the child in adoption, this  is highly questionable as the surrogate mother  is only the gestational carrier and not the genetically related to the child ,  DNA test if conducted in such cases would reveal the biological connection with the intending mother i.e the wife of the intending father or the egg donor thus the capacity of surrogate to give child in adoption may be contested and may invite other legal issues !

Taking forward the same reasoning, adoption leads to  illogical inferences that the surrogate mother’s name should be entered in the birth certificate of the surrogate child as the legal mother and her husband as the father of the surrogate child ,  It may be mentioned here that the ART Bill 2010 ( section 34 (10) prohibits the naming of surrogate mother in the birth certificate of the child as the legal mother rather it expressly mentions the name of Intending couple who has commissioned surrogacy as the legal parents or legal father and mother of the surrogate child.

Last but not the least , the applicability of this Hague Convention on Protection of Children Co-operation in Respect of inter country Adoption 1993 in international surrogacy is doubtful, as the provisions laying down adoption under this convention run counter to the international surrogacy arrangements.

The Hague Convention ( section 4) provides for adoption not induced by monetary payment , consent to be given by mother  after the birth of child[5]  thus, only Adoption made in compliance of same my be held  internationally legally valid  and adoption made otherwise have no legal effect or invalid.

Where as   the surrogacy agreement   expressly provide for monetary payment to the surrogate mother by the intending couple to carry the child  for giving birth and relinquishing the custody of surrogate child. hence it is evident that the  use of adoption in all cases blindly will not suffice. Therefore  there is need to formulate an uniform instrument universally binding which may address concerns related to surrogate child born out of international surrogacy arrangement involving inconsistent surrogacy laws of respective nations.

A step in right direction   – Proposed Hague Conference on Private International Law on Status of Children, Including Issues Arising from International Surrogacy Arrangements” suggesting formulation of new  convention on the lines of  Hague Inter country Adoption Convention 2011 – 2013 year.

The Permanent Bureau of the Hague Conference on Private International Law  since 2011 is working to build a  consensus on a global approach to addressing international surrogacy issues. And the need for formulation of Convention governing international surrogacy arrangements, akin to the 1993 Inter country Adoption Convention which governs  international adoptions for the surrogate children. The final comprehensive outcome is awaited.

Surrogacy has become popular across the world as viable option to have child and build family for the infertile couple who may not be able to have child through normal course.

India as the hub of global surrogacy destination –

India has earned itself the epithet of being the global surrogacy capital of the world,[1] particularly Anand in Gujarat is called as the cradle of the world[2].  The confederation of Indian Industry states that surrogacy generates $2.3 billion a year.[3]  It is reported that almost half of the children born through surrogacy in India belonging to non-Indian clients or foreign intending couple. According to the Department of Immigration and Citizenship of Australia the Australians make up at least 40 per cent of the foreigner intending couple visiting India for surrogacy[4].

There are  various factors for making India the global destination for surrogacy , the cheaper cost of surrogacy Treatment  , abundant availability of poor women willing to be surrogate mother ,lack of regulations on surrogacy, easier entitlement to parenthood, waiver of custody , guardianship rights by surrogate mother , enforceability of surrogacy agreement are  attracting foreign couples to avail surrogacy in India.

India’s legal position on surrogacy-

India has legalized surrogacy since the year 2002. The landmark judgment of Baby Manaji Yamanda India legalized commercial surrogacy paving way for drafting of legal instruments for regulating  surrogacy  , the Assisted Reproductive Technology  ( Regulation) Bill  2008 which was revised leading to the Assisted Reproductive Technology  ( Regulation) Bill 2010, by the Ministry of Health & Family Welfare, Government of India,  at present it is only a  Bill awaiting its enforcement , validity and its legal binding effect.

One of the distinct feature of Indian Surrogacy is commercial and transnational  (section 34 (1) , (3) , (19) of ART Bill 2010)  nature it permits both citizens of India as well  as citizens of foreign nationals  to commission surrogacy in India   by availing the services of surrogate mother ( with or without donor gametes )  in exchange of monetary payment under a surrogacy  agreement .

Legal Issues in International or Inter country Surrogacy Arrangements –

There is no international uniform convention or treaty regulating surrogacy at international level. Different countries provide for different legal regimes on surrogacy, for instance, while India , Ukraine , California permits commercial surrogacy , UK , South Africa, Canada , Australia , ban commercial Surrogacy , Japan France, Sweden, Germany many other European nations prohibits surrogacy in all forms. thus there is conflict of the inconsistent or varying surrogacy legal regimes . Owing to such legal inconsistency , International surrogacy arrangements have a thrown up a host of legal issues non enforceability of surrogacy agreement, non registration of birth of surrogate child, non recognition of the legal documents birth certificate, non recognition of parentage rights of intending couple over the surrogate child in another nation.

Though India is considered as a hub of surrogacy , The present Indian legal instrument on surrogacy are not adequate to address the issues or concerns raised by international surrogacy arrangements . Presently in India ART Bill  2010 awaiting its enforcement  , the surrogacy agreement  made in India has no legally valid or binding effect outside the territorial limit of India. At the same time, the Government of India does grant citizenship by birth to the  surrogate child born in India to a foreign intending couple  ( section  35 (8) of ART Bill 2010 ) and  do not allow the surrogate children to be taken outside the Indian territory or back to the foreign country as India citizen.

These Foreign Intending couples face legal troubles on their way back to the foreign country starting with denial of passport, Exit visa stamping for the surrogate child  by  the foreign Embassy,  denial of parentage or filiations right to the Intending couple , birth registration of surrogate child as per their country specific laws . thus, the surrogate child faces the threat of being left behind in India  in the absence of defined parentage and citizenship.

Thus there is a legal void for securing the inter country movement of surrogate child and  for enforcing the incidental basic civil legal rights of the surrogate child.  Under such conditions,  Foreign  Embassy , Indian and international courts have heavily relied on the adoption of surrogate child  in order to facilitate the inter country movement of surrogate child thereby  safeguarding the  basic civil legal right of surrogate child

As India as well as most of the countries of the world have not only clear established laws or statutes on Adoption but most of the countries are party to Hague Convention on Protection of Children Co-operation in respect of inter country Adoption 1993 which lay down procedure for inter country adoption of children by seek to create permanent child parent relation . Besides ,the legal effect of adoption is same as that of biological child of the couple where as in case of surrogacy , the legal effect , validity to the birth of surrogate child is highly dubious as it is hit by the inconsistency in the inter country surrogacy law and absence of uniform legal mechanism for the same.

Embassy Directions, Immigration  Rules of foreign countries providing for adoption of surrogate child –

Immigration Regulations of UK , Australia, New Zealand provide for adoption of surrogate child born of international surrogacy arrangements by the intending couple.

Besides Adoption has been recommended by the foreign embassy as the only available measure in absence of necessary proof of establishment of motherhood or parenthood of the Foreign Intending couple over the  surrogate child .

Supreme Court of India directs Adoption of Surrogate children –

In addition to the these,  the Supreme Court (SC ) of India has provided for adoption of children born of international surrogacy arrangement as a measure to resolve the issues resulting from  the inter country conflicting surrogacy laws namely parentage right, birth registration,  citizenship of the surrogate child. There have been  two landmark cases on this point which may be mentioned here .

In  Baby Manaji Yamanda. Union of India (Writ Petition  (C) No. 369 OF 2008) –

A Japanese  couple commissioned surrogacy in India at Aanand in Gujarat by availing the service of  surrogate mother with egg  from anonymous donor and his own donated sperm , following the birth of a surrogate child Manji in India , the Japanese Embassy in India refused to grant Manji a Japanese passport or visa in keeping with the Japan civil code which states birth mother is the legal mother thus the surrogate mother is the legal mother which created further legal issues. Meanwhile, during the pendency of proceeding the couple divorced there after the ex wife did not want the child .

Considering the absence of any law on surrogacy in India, the court provided for adoption of the surrogate child manaji in India by the intending father  but this adoption of the baby girl by a single male was not permissible under Guardians and Wards Act 1890,as this law does not allow single men to adopt baby girls.

The court made a legal exception and granted birth certificate stating intending father as the legal father to the child and based on the birth certificate the Japanese authority granted passport, visa on humanitarian grounds for safeguarding the interest of surrogate child .

Secondly , in the case of Jan Balaz Vs. Anand Municipality and 6 Ors. (AIR2010Guj21)  A German couple Jan Balaz commissioned surrogacy availing  donor eggs and surrogate mother , the child was biologically related to Mr Balaz through donated sperm, resulting in the birth of two surrogate twins .  But subsequently the German consulate refused to issue passports to the surrogate child based on the German law which strictly prohibits surrogacy and does not recognize surrogacy as a means of establishing parenthood accordingly the Balaz’s had no legal filiation to the children. Eventually, the matter reached the supreme court which requested Central Adoption resource Agency,  (CARA Central Adoption Resource Authority (CARA) is an autonomous body under the Ministry of Women & Child Development, Government of India. It deal with inter- country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003)  to make a one time  exception on humanitarian ground considering the child welfare and facilitate adoption for these twins .  Accordingly these surrogate twins were adopted by the German Couple and they were taken back to Germany

These cases open a flood gate of unresolved  legal issues as the court has not laid down  any  guidelines  but provided for adoption  as a  provisional measure for saving the surrogate child from being rendered stateless and parentless.

ART Bill provides for Adoption of Surrogate Children –

Keeping with such eventualities, even the ART Bill 2010 (Section 34 (19)  also provides for adoption of surrogate children under certain conditions by  local guardian where the  foreign intending party  fails to take delivery of the surrogate child born in India,

Thus adoption has by far appeared to be the only workable measure , but adoption may not be held to be the ultimate resolve as there contesting issues involved in the same.

Analysis of Inconsistency & Impediments in Surrogacy & Adoption –

Though , Adoption as well as Surrogacy are both are means to  attainment of  right to family or  right to attainment of  Parenthood. Despite this  similarities, there are marked differences between surrogacy and adoption , surrogacy involves commercial transaction or exchange of monetary payment under a surrogacy agreement made before the birth of child for gaining custody guardianship or parentage rights over the surrogate child  where as adoption strictly prohibits the same and penalizes any such agreement providing payment for relinquishing the  custody of child , thus the fundamentally they are not only different but strictly opposing and strike at the legality . Accordingly , Hindu Adoption & Maintenance Act 1956 ( Section 17 )  not only  prohibits but penalizes such payment for adoption .

There are implicit legal issues in the applicability of adoption in surrogacy arrangements, adoption conveys  that the surrogate mother is presumed to be the legal mother of the child , thereby the surrogate mother and her husband have the legal capacity to give the child in adoption, this  is highly questionable as the surrogate mother  is only the gestational carrier and not the genetically related to the child ,  DNA test if conducted in such cases would reveal the biological connection with the intending mother i.e the wife of the intending father or the egg donor thus the capacity of surrogate to give child in adoption may be contested and may invite other legal issues !

Taking forward the same reasoning, adoption leads to  illogical inferences that the surrogate mother’s name should be entered in the birth certificate of the surrogate child as the legal mother and her husband as the father of the surrogate child ,  It may be mentioned here that the ART Bill 2010 ( section 34 (10) prohibits the naming of surrogate mother in the birth certificate of the child as the legal mother rather it expressly mentions the name of Intending couple who has commissioned surrogacy as the legal parents or legal father and mother of the surrogate child.

Last but not the least , the applicability of this Hague Convention on Protection of Children Co-operation in Respect of inter country Adoption 1993 in international surrogacy is doubtful, as the provisions laying down adoption under this convention run counter to the international surrogacy arrangements.

The Hague Convention ( section 4) provides for adoption not induced by monetary payment , consent to be given by mother  after the birth of child[5]  thus, only Adoption made in compliance of same my be held  internationally legally valid  and adoption made otherwise have no legal effect or invalid.

Where as   the surrogacy agreement   expressly provide for monetary payment to the surrogate mother by the intending couple to carry the child  for giving birth and relinquishing the custody of surrogate child. hence it is evident that the  use of adoption in all cases blindly will not suffice. Therefore  there is need to formulate an uniform instrument universally binding which may address concerns related to surrogate child born out of international surrogacy arrangement involving inconsistent surrogacy laws of respective nations.

A step in right direction   – Proposed Hague Conference on Private International Law on Status of Children, Including Issues Arising from International Surrogacy Arrangements” suggesting formulation of new  convention on the lines of  Hague Inter country Adoption Convention 2011 – 2013 year.

The Permanent Bureau of the Hague Conference on Private International Law  since 2011 is working to build a  consensus on a global approach to addressing international surrogacy issues. And the need for formulation of Convention governing international surrogacy arrangements, akin to the 1993 Inter country Adoption Convention which governs  international adoptions for the surrogate children. The final comprehensive outcome is awaited.

 

 

 

 

 

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