SurrogacyIndia’s focus is in fertility, not infertility. Making babies, is possible. ‘Possible’ is what we believe in.


Friday, October 31, 2014

Happy Halloween from SurrogacyIndia

Happy Halloween to you… from SurrogacyIndia team. Hope it is a “spook”tacular one! Enjoy the yummy treats! — at SurrogacyIndia.

Government set to allow abortions till 24 weeks

MUMBAI: The Indian government has proposed an increase in the abortion limit from the present 20 weeks to 24 weeks and even beyond in case of fetal abnormality.

A draft Medical Termination of Pregnancy (Amendment),Bill 2014 was put up on the ministry of health website on October 29.

The draft says that pregnancies can be terminated up to 24 weeks if there is a risk to the life of the pregnant woman or of injury to her physical or mental health or if there is substantial risk that if the child were born it would suffer from serious physical or mental abnormalities.

The draft added that if the fetus was diagnosed with substantial abnormalities then pregnancy can be terminated at any stage. " this means the fetus can be terminated even beyond 24 weeks if detected with an abnormality" said Dr Nikhil Datar whose patient Niketa Mehta highlighted the need for a change in the last.

It may be recalled that in 2008 a Mumbai resident Niketa Mehta had moved the Bombay High Court and the Supreme Court for termination of her 20-plus week pregnancy after diagnostic scans showed that the fetus had abnormal heart.


Obama OKs IVF industry to sell US citizenship!

Reverse biological colonialism!

I have written about this before, but now the Obama Administration has given its imprimatur to foreigners buying U.S. Citizenship for their babies.

Here’s how the scheme works: Imagine a Chinese couple create embryos using IVF in Beijing. The embryos are shipped to the USA and implanted in an American woman’s uterus. She gives birth and the babies are taken back to China by the biological parents. Should the kid be a US citizen?

The Obama Administration has just promulgated regulations saying yes! From the USCIS summary:

Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:

- Be able to petition for her child based on their relationship

- Be eligible to have her child petition for her based on their relationship

- Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.

Realize that under surrogacy contracts, THE SURROGATE WAIVES LEGAL PARENTHOOD! But for purposes of opening America’s doors, the Feds say baby citizen if surrogate was the legal mother at birth.

So, the contracts will just provide that the waiver of parenthood occur after birth, and voila, instant citizenship. For sale. Unbelievable.

The voracious IVF industry is way out of hand. And now, it has the seal of approval from the U.S. Government to sell American Citizenship.

This scheme will turn a pretty penny!


HT: Daily Caller

PS: Neil Munro of the Daily Caller shows another way this could work:

The change means that a woman who is a U.S. citizen can be hired by a reproductive medical clinic to become pregnant overseas and to give birth in China, Saudi Arabia, or anywhere else, and then effectively hand a U.S. passport to the baby.

Either way, there’s money in selling citizenship.


Thursday, October 30, 2014

Fine line between assisted reproduction, designing babies

Careers, money and the environment are a number of intertwined factors that affect fertility. Pressured by financial considerations, some couples might choose to delay starting a family. Women who relegate having a baby to the backburner might suddenly find themselves staring at the ticking biological clock when they become ready.
Fortunately, there are options. Often, the problem is low, not complete, infertility. In such cases, in vitro fertilization could be a viable option. During this process, a woman’s egg and a man’s sperm are combined in a petri dish and the resulting embryo is implanted back into the woman’s uterus. When IVF is carried out for this purpose — to help low-fertility couples conceive — I believe most people would agree there are very few ethical dilemmas involved. After all, IVF utilized in these types of circumstances is no different than using Viagra. It simply facilitates reproduction that would otherwise be difficult.
Ethical dilemmas begin to arise when a) one member of the couple is completely infertile, and, therefore, a single egg or sperm donor is needed for the IVF procedure, b) both members of the couple are homosexual, and therefore need a single egg or sperm donor or c) both members of the couple are infertile and therefore need a sperm donor and an egg donor. When donors are involved, it complicates the ethical nature of IVF, for couples could selectively choose their sperm or egg donor and thus selectively choose the traits of their child. Many argue that this process of selecting the traits of their children is a form of eugenics and should not be allowed. Many also argue that there are thousands of children who need to be adopted and that these children should be adopted before new babies are “manufactured.”
While these arguments are perfectly valid, what many people do not realize is that there is a critical difference that separates circumstances “a” and “b” from circumstance “c.” In circumstances “a” and “b,” the resulting child is genetically related to one of the parents, while in circumstance “c,” the resulting child is not genetically related to either one of the parents. In my opinion, this single distinction makes circumstances “a” and “b” ethically permissible and makes circumstance “c” ethically impermissible.
I think most people would agree that there is something wholly special about having a child that is genetically yours, of seeing some qualities of yourself in your child. I do not think it is fair to deny homosexual or half-infertile couples this unique experience. It is certainly true that the couples described in circumstances “a” and “b” would be able to selectively choose the donor, but I believe this is ethically permissible if the child is related to one of the members of the couple. After all, do people not selectively choose their spouse or partner? Even through reproduction by ordinary means, we have some say in the genetic make-up of our child by selecting the person we choose to have that child with.
However, if both members of the couple were infertile and required both a sperm and an egg donor, the couple would be creating a baby entirely unrelated to either of them. The baby would be no different from one they could adopt from an adoption center. In this case, the sole advantage of creating a child through IVF versus adopting a child would be the ability to choose the characteristics of the child. Creating a genetically unrelated baby in this circumstance would be a relatively selfish act, since there are thousands of unrelated babies who need to be adopted.
One must also keep in mind that IVF, like adoption, is an expensive procedure, and this process is only viable for upper-class couples. If these completely infertile upper-class couples were to have genetically superior children, would this not widen the ever-growing gap between the rich and the poor? The genetic quality of the upper class would steadily increase over the generations, while the genetic quality of the middle and lower classes would remain of “average” quality. One might argue that this situation could hold true for homosexual and half-infertile upper class couples as well, since they, too, get to select a donor. However, unlike completely infertile couples, these couples only select half of their child’s genetic makeup, since they only select one donor. Thus, for homosexual and half-infertile couples, this genetic quality effect would not be as strong. 
The effects on the resulting child must also be taken into consideration. If a completely infertile couple were to pay a large amount of money for a genetically ideal child, there would be a tremendous amount of pressure on that child to live up to their preconceived expectations.
As new technologies like IVF become available, it is vital that their moral implications be taken into consideration. It is always critical that we ask ourselves the question: Just because we can, should we? While many of these technologies do wonderful things like enable low-fertility couples to have children, these same technologies could also be used to carry out more ethically questionable things like designing genetically ideal babies.


Bill to allow singles and same-sex couples to make surrogacy agreements passes on first reading

An amendment to the Surrogacy Law of 1996 was passed on its first reading in the Knesset plenum late on Monday that, if eventually approved, would allow unmarried heterosexuals and homosexual and lesbian couples to commission a surrogate to produce a baby. The amendment was initiated by Health Minister Yael German, under whose auspices the original law is carried out.

In addition to including singles and single-sex couples under the law, it would also expand the number of women who want to serve as surrogates by allowing Israelis to commission them abroad either personally or through a middleman company.  The money that the surrogate would receive for her services would be limited. An approval committee would, as before, have to give its approval before would-be parents are allowed to start the procedure.

German said that in recent years, numerous Israelis have traveled abroad to try to have a child through a surrogate. As the procedure for Israelis is not recognized when carried out abroad, they have faced many legal and ethical problems, especially those involving citizenship for the baby.

The committee headed by National Insurance Institute director-general Prof. Shlomo Mor-Yosef recommended that unmarried women and men without a female partner should be able to go through the surrogacy agreement just like married couples of the two sexes.

German said the amendment forges a balance between the needs of those who want to become parents and protection for surrogates who are paid to carry and deliver their child.

But passage will not be simple, as it was opposed both by religious and women’s rights groups. United Torah Judaism MK Moshe Gafni said the amendment would “destroy the structure of the family, and women will sell their bodies.” Shas MK Nissim Ze’ev compared the bill to “talking about the import of frozen meat.”

Meretz MK Michal Rosin said that despite the goodwill posed by the amendment, “there is a big problem of [renting out] one’s uterus. Women who serve as surrogates are weak [economically] and do it to make a living. Pregnancy and delivery are potentially dangerous, and sometimes, surrogates pay a heavy physical and emotional price. It isn’t like semen samples from men. A lot of work has to be done on this bill,” she said.

A total of 45 MKs approved the bill on its first reading, 15 opposed and three abstained. It will now go to the Knesset House Committee for a decision on what committee will prepare it for its second and third readings. The Bayit Yehudi party gave its MKs the right to decide how to vote themselves.

Under the proposal, once one person initiates a surrogacy agreement, another single can be recognized as a parent of the child without having to adopt it later; this is meant to suit lesbians and homosexuals.

The biological parent would also be able to take ova abroad for fertilization and implantation. Men would be allowed to get donated ova in Israel and take them abroad, while women and couples could import them to Israel to perform the process here.

The surrogate would be entitled to undergo no more than three procedures to insert fertilized eggs in her womb. Heterosexual couples would be able to have up to two babies by surrogacy, while singles would be able to have one. The maximum age of the parent would be raised to 54 years. Foreign clinics where the procedure would be carried out will have to meet ministry standards.


Saturday, October 25, 2014

Swedish feminists condemn surrogacy: ‘a global trade with women’s and children’s bodies’

A Swedish feminist organization has issued a policy paper condemning surrogate motherhood and demanding the government legislate a ban on the practice.

The Swedish Women’s Lobby (Sveriges Kvinnolobby) argues that surrogacy exploits the woman’s body and her reproductive organs, and violates poor women’s human rights.

"Having a feminist approach to surrogacy means rejecting the idea that women can be used as containers and their reproductive capabilities can be bought," the policy paper states.

"The right to bodily integrity is a right which should not be able to be negotiated by any form of contract. No matter the regulation or the nature of the contract, it still remains a trade with women’s bodies and with children. The rights of women and children, not the interest of the buyer, must be the focus of the debate surrounding surrogacy."

The paper notes that surrogacy is presently not legal in Sweden. However, the government is investigating the issue with the intent of implementing regulations since it came to light that Swedish citizens have used surrogate mothers abroad, and that children born in this way have been brought to Sweden.

"An end needs to be put to the industry of surrogacy that reduces the female body to a container. If doors for surrogate motherhood are opened, no matter how regulated it may be, children will be viewed as commodities and women as containers," the group stated in the introduction to its campaign against surrogacy, called “Feminist no to surrogacy.“

The campaign cites the resolution on violence against women adopted by the European Parliament in April 2011 to support its position, and notes the European Women’s Lobby’s condemns "both altruistic and so called commercial surrogacy, as, in practice, there is no difference between the two; in both cases, there is a trade in human beings."

"Through the campaign," the group says, "we provide an alternative forum on feminist grounds where the focus lies on women’s bodily integrity and not the rights for childless parents over women’s basic human rights.”

Addressing the issue from the perspective of the exploitation of poor women by wealthy westerners, the policy paper states, "In the majority of the cases of commercial surrogacy, the purchasers come from western countries and the surrogates from third world or developing countries.”

"There is an unequal power-balance between purchasers and surrogates. Western people prey on eastern women’s vulnerable economic situation in their quest for a child. Becoming a surrogate mother is a way for women in socially vulnerable positions to sell what fundamental human rights should protect them from being forced to sell – their own bodies."

The Swedish Women’s Lobby states that it is raising the issue, and voicing its opposition to surrogate motherhood because "we are seeing a trend towards a dismantling of these fundamental rights in favor of the will and want of individuals to become parents in the name of their individual fulfillment."

The group observes that the issue of surrogacy "has been treated within the discourse of reproductive rights and the means of childless parents to have a baby, when the human rights perspective is the only plausible [position] in dealing with this issue. We find that the current investigation in Sweden is being issued on the wrong grounds and that the set of voices that are asking for an investigation are lacking a human rights perspective."

"We therefore call on the Swedish government to forbid surrogacy motherhood," the policy paper concludes.


Wednesday, October 22, 2014

SI is not working on 23rd & 24th October 2014

SI is not working tomorrow and day after i.e. 23rd & 24th October 2014, on account of Diwali celebration hence there could be delay in reply to the emails.

However, you may always give us a call in an emergency situation.
 — at SurrogacyIndia.

Regulation of Surrogacy

Recent cases prove that universal laws are needed to provide clarity and help secure the welfare of surrogate babies.

With news of more arrangements going awry following a surrogacy agreement - this time an ‘unwanted’ twin born to a surrogate in India (in 2012) and allegedly rejected by an Australian couple who said they could not afford to support both children - the issue of lack of regulation of the surrogacy industry has once again come to the fore.

A recent report in the Guardian about surrogacy tourism in Mexico, plus the case of Thai-born baby Gammy, which hit the headlines worldwide, and closer to home the story of a British couple who rejected a twin girl, ‘Amy’, born with congenital myotonic dystrophy to a British surrogate mother, also highlight the need for regulation. How many other tragic cases will come to light before we see change to protect the children and parents involved?

Much of the media coverage of these cases has been replete with misconceptions. It is a widely stated myth, for example, that payments to a surrogate are illegal in the UK. This isn’t true. In fact, the relevant legislation does not prohibit payments from intended parents to a surrogate in the UK, but a third party (for example, an agency) cannot profit from such an arrangement.

In addition, when intended parents come to apply for a Parental Order in the UK (to obtain legal parental status of the surrogate child), they will need to ask the court to authorise any payments made to a surrogate. So, while the level of payments made will be under scrutiny, it is not illegal to pay a surrogate per se.

However, what is indisputable is that currently there is no international regulation of surrogacy, nor international convention dealing with the legal issues involved, leaving children (such as baby Gammy) born of surrogacy arrangements without proper protection or security.

Intended parents, surrogates and surrogate children have to rely on local surrogacy laws - if there are any - which vary from country to country. As was seen in the Gammy case, there is frequently confusion over what the local law actually says in relation to surrogacy.

Some countries such as Mexico have a very liberal approach. (The Guardian highlighted that Mexico is seeing an upsurge in surrogacy as India and Thailand tighten their laws.) Other countries such as France don’t recognise children who are born via a surrogacy arrangement, often leaving children stateless.

It is therefore no surprise that UK and international surrogacy lawyers are calling for worldwide regulation of the surrogacy industry and an international convention to ensure protection of children born of these arrangements. The Hague conference is working on the issues arising from international surrogacy arrangements but an international convention is likely to be many years off.

The complexities of cross-border surrogacy arise because of the potential number of interested legal systems: where the surrogate lives; where the intended parents live and their citizenship; the country where the birth is taking place and where the surrogacy agreement is entered into.

As a starting point, we urgently need an international code of practice and regulated surrogacy clinics, with fines imposed for contravention.

In the meantime there are three important lessons lawyers can learn from the Gammy case if they are assisting British couples considering surrogacy overseas:

Make sure you have good lawyers advising your clients in the country where the surrogacy is taking place. Before entering into any agreement, it is essential that both the surrogate and the intended parents are fully aware of their rights and duties under the agreement and the impact of local laws that apply to the agreement.

Clients should ensure any agreement covers the worst-case scenario. Issues such as downs syndrome and other pregnancy complications should be discussed and agreed well before a contract is signed and provisions made accordingly.

Check the enforceability of contracts in the relevant country and whether your clients are able to apply for a court order pre- or post-birth to ensure their legal status.

The legal and ethical issues surrounding surrogacy are complex but governments around the world need to face up to the fact that intended parents are still going ahead, despite the risks, often leaving children without proper protection. Why not start here in the UK? With a 2015 election approaching, it will be interesting to see if any of the UK political parties take up the baton and make any proposals in their forthcoming manifestos.

We may not yet be able to change the world but lawyers can certainly push for a better system here in the UK to allow commercial surrogacy in a properly regulated and safe way. Thousands of British couples are choosing surrogacy to take place in the UK and abroad each year, so why not regulate it properly?


Tuesday, October 21, 2014

Dhantrayodashise & Diwali Celebration at SurrogacyIndia

SurrogacyIndia started the celebration of Diwali with the first day as Dhantrayodashise. SurrogacyIndia wishes you all a PROSPEROUS HAPPY DIWALI — at SurrogacyIndia.

Monday, October 20, 2014

"Linnea" the 342nd baby with SurrogacyIndia

Linnea the national flower of Sweden is blossoming in the orchid of SurrogacyIndia — at SurrogacyIndia.

Thursday, October 16, 2014

Facebook, Apple to fund freezing of ovaries by female staff

There is a dearth of senior women in Silicon Valley so the perks offered by Apple and Facebook could be seen as an attempt to rectify the gender imbalance

San Francisco : Apple and Facebook have added an extra incentive to women considering working at the tech giants by giving female employees the option of freezing their ovaries to attract and retain more women in their workforces in Silicon Valley, according to IANS.

Facebook on Tuesday told the NBC News channel that it had been offering this option to its employees since January, while Apple said that it would begin doing so from the beginning of next year.

The procedure allows women to freeze their ovaries during their most fertile years which often coincide with the most productive period in their professional lives.

The quality of ovaries diminish with age, which puts many women in a difficult position as they have to decide whether to delay having a child or not once they are past the age of 30.The cost of the procedure could amount to $20,000, since two ovarian stimulation cycles are normally required for collecting samples, and the US health insurance policies do not usually cover the costs of the procedure.

offers up to $20,000 (£13,000) for egg freezing for female employees. The company also offers adoption and surrogacy assistance and “a host of other fertility services for male and female employees”, the company said, according to The Guardian.

There is a dearth of senior women in Silicon Valley so the perks offered by Apple and Facebook could be seen as an attempt to rectify the gender imbalance.

Apple said in its diversity report this year that its workforce was 70% male, while Facebook reported its workforce was 69% male, the report added.

The tech companies emphasized that egg preservation was one of many family-friendly benefits they offered employees, which include perks like baby bonuses to spend on diapers and meals and benefits for adoptive and same-sex parents, says a New York Times report.


Apple, Facebook offer women egg freezing insurance plans

Women whose biological clocks are ticking, and who also work for two mega Silicon Valley companies, will now have the insurance option of putting motherhood on ice, literally.

That’s because Apple and Facebook have become the first major employers in the country to offer its employees the option to freeze their eggs.

The coverage is part of a growing trend by the technological giants to attract and retain women in the industry by giving them the option to postpone pregnancy during their formative career years.

Appleinsider says the fertility perk will give the company “an extra edge in wooing top female talent and keeping current employees on board for longer periods.”

The procedure of extracting, freezing and banking a woman’s eggs for later in vitro fertilization, which is called Oocyte Cryopreservation, does not come cheap.

One round can cost between $7,000 and $12,000, not to mention the additional costs of medications as well as egg storage which can run about $500 a year. And many women have to undergo the extraction a second time to get the recommended amount of eggs.

It also does not guarantee that a woman may have a child in the future. According to the website Eggsurance, it’s more like an insurance policy for the possibility of having kids.

It does, however, give a woman an opportunity to save the reproductive cells when they are most viable.

According to the American Society for Reproductive Medicine, the best chance of having a baby is when a woman is in her 20s because fertility declines drastically by the time she is 35 years old.

Both companies will offer up to $20,000 for the procedure in addition to a host of varying other parenthood perks including fertility services for men and women, and adoption and surrogacy assistance.

Brigitte Adams, the founder of Eggsurance, said that by offering the coverage the companies are investing in and supporting women.

“Having a high-powered career and children is still a very hard thing to do,” said Adams.

Apple said that by allowing women to delay their dreams of having children empowers them “to do the best work of their lives as they care for loved ones and raise their families.”

Critics, however, are already pouring cold water on the plan. Some said the policies send a message that work is more important than motherhood.

Others mused that it's really an evil plot. A post on the Valleywag blog is titled "Facebook and Apple Offer Egg-Freezing Perk So Women Never Stop Working."


Monday, October 13, 2014

French Gov’t Affirms Its Prohibition of Gestational Surrogacy

PARIS–The French “La Manif pour tous” (Protest for All) movement has gathered 100,000 participants in Paris and Bordeaux on 6 October 2014. This movement, established in 2012, shows the face of a traditional France attaching great importance to the family.  The people often don’t recognize themselves in the proposals of the government.  Last week, Prime Minister Manuel Valls wanted to reassure, and affirmed to be opposed to gestational surrogacy, a practice of “commercializing human beings and merchandising the female bodies”, something intolerable, according to his own words. France also plans a global initiative to get a ruling among the states.

Do Not Touch the Intimacy and the Beliefs
Last weekend, “La Manif pour Tous” has once again shown the sustainability of the movement and its supporters.  Established in November 2012, in reaction to the Taubira law on marriage between persons of the same sex, the movement has grown to a reach that no sociologist or political scientist could have predicted: six large protests, including two that gathered around one million people. With this last rally, the government seems to have understood the message coming from a solid base of the population, defending a “natural” family pattern as the foundation of French society.

This is the card of appeasement PM Manuel Valls played a few days before the rally, admitting he had changed his mind on gestational surrogacy, and recognizing in the public debate the virtue of having evolved government positions. “I think we cannot go towards this kind of procreation that would question our values and principles,” declared the Prime Minister during a press conference in Matignon office. He explained his thinking to the newspaper La Croix: “Family and ethical issues are serious matters that affect intimacy and beliefs.”

The gestational surrogacy and the assisted reproduction for people of the same sex, were actually underlying effects of the first piece of legislation on marriage for all sexes in 2012.  What belonged to the natural state of a human being would be legislated by political ideas. That is why, considering the public outcry that started two years ago, and thanks to a deeper debate, the government is now strictly opposed to the legislation of gestational surrogacy.

“In a world where everything can be bought and sold, where values and principles are not sufficiently coordinated, it is the law’s duty to define limits, to guarantee the base of principles that organizes society’s life,” the Prime Minister declared.

An Ethical Question on International Ruling
In June 2014, the European Court of Human Rights condemned France for refusing to automatically transcribe the parentage act for children born overseas from gestational surrogacy. France didn’t appeal, but insisted that its national legislation could not be questioned by acts committed abroad.

For PM Manuel Valls, states have the responsibility to fight against the commercialization of human beings. A political initiative will thus get started at international level by the French Foreign Affairs Minister Laurent Fabius, aiming to forbid gestational surrogacy to French citizens abroad. This is an important ethical question for the protection of children, and the fight against merchandising the human body, which must be the heart of concerns of the international community, according to the Prime Minister.

France is indeed a pioneer in the field of medical ethics within its borders, but has no legal means to enforce this law on French citizens travelling abroad.

Examples Abroad
For 60 years, the evolution of medical science has far exceeded the limits of its ethical and legal framework, and trafficking networks of the human body appeared at the same time.

“Farms” of surrogate mothers appeared in India, taking advantage of the poverty and distress of women who became pregnant machines. In South America, the Philippines, Pakistan, and in Kosovo, an organ mafia has developed run by organized crime. In China, organs of prisoners of conscience are being harvested in the basements of military hospitals on a large scale. This highly lucrative business rekindles transplant tourism worldwide.

The merchandising of the human body opens up a world in which man, as the saying goes, “is a wolf to man”, and would amount to the financial sum of his organs, thus excluding the foundations of a civilization:  an indivisible and unique soul for all its citizens, respecting values and ethical principles, and moral foundation for generations to come.


Friday, October 10, 2014

High court put justice before statutory requirements in surrogacy case

Sir James Munby’s award of a parental order after a couple missed a deadline to apply is a sensible interpretation of parliament’s intentions

Judges will seek to apply the law faithfully as laid down by parliament, the deputy president of the supreme court told me this week. Lady Hale, who was responding to my “what if?” question about the Human Rights Act for a special anniversary edition of BBC Radio 4’s Law in Action to be broadcast next week, was saying no more than any judge would. But what happens when a judge comes across a statutory requirement that would lead to an injustice? Can it simply be ignored?

The issue came up in a case decided last week. It was brought by a couple who wanted a surrogate child, presumably because they were unable to have one of their own. We know little about them except that they began legal proceedings in Birmingham.

In 2011, the Birmingham couple made a surrogacy agreement with a married couple in India. The Indian surrogate mother conceived using eggs donated by a third party and sperm from the Birmingham father.

A child was born in December 2011, the surrogate parents confirmed that they wanted to give up their parental rights and responsibilities, and the Birmingham couple brought the child to the UK on a British passport last year. He is well cared for and much loved.

So far, so good. But what the Birmingham parents did not know is that they needed a parental order from the English courts. That would ensure that the child was treated as their own. More importantly, it would extinguish the legal rights and responsibilities of the Indian couple. Without such an order, the Indian mother and her husband would continue to be treated as the child’s parents. They had no wish to remain involved with the child but could not give up those responsibilities without a court order.

The Birmingham couple could have sought an adoption order but that would seem odd, given that one of them is the child’s biological father. A parental order under section 54 of the Human Fertilisation and Embryology Act 2008 was the obvious solution.

But there was a problem. Section 54(3) says that “the applicants must apply for the order during the period of six months beginning with the day on which the child is born”. It does not say what should happen if they do not. The Birmingham couple were at least a year out of time.

Not surprisingly, non-compliance with a legislative requirement is not a new problem. It came up as long ago as 1877 when Lord Penzance, sitting as Dean of Arches, drew a distinction between statutory requirements that were “mandatory” and those that were merely “directory”. If mandatory, failure to comply meant that the proceedings failed. If directory, you might be able get round them.

The distinction was well explained in 2005 by Lord Rodger, a law lord. He said:

If your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by 11 o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later.

Giving judgment in the surrogacy case last week, Sir James Munby said the courts had to decide which of these categories a case fell into. Did parliament intend non-compliance with the six-month deadline to be fatal? Or did it intend a “sensible” result?

Munby, the president of the family division, pointed out that a parental order “has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences”. A court had to treat the welfare of the child as paramount throughout his life. Parliament could not have intended a delay of a few months – for which the child had no responsibility – as critical. So he made the parental order that the Birmingham parents had requested.

Munby was able to reach this conclusion using principles of statutory interpretation. But he said he could also have reached the same result by “reading down” the statute under the Human Rights Act. However, he stressed that every case was fact-specific.

Welcoming the decision, a family lawyer specialising in surrogacy work said Munby’s decision to grasp the nettle was long overdue. Pamela Collis, from the law firm known as HowardKennedyFsi, said such orders had been refused in the past. But she asked what would ​now happen to the children involved. “Their inheritance prospects and very being may be coloured by the fact that they have no legal parents,” Collis added.

So unless Munby’s judgment is overturned on appeal – which strikes me as highly unlikely – his next task will be to devise a procedure for historical cases that come to light. But that should not be too difficult. His was a wise judgment and its benefits should be widely shared.


Thursday, October 9, 2014

Tony Abbott rules out national laws on overseas surrogacy

Prime Minister Tony Abbott has rejected calls for national laws on overseas surrogacy saying it should remain a matter for the states.

Mr Abbott on Thursday said commercial surrogacy was not an issue for the federal government after he was asked about the case of an Australian couple abandoning a surrogate baby in India in 2012, despite Australian consular officials pleading with the couple not to leave without the child.

The ABC revealed on Wednesday that a baby boy was left behind while his parents returned to Australia.

Mr Abbott said although the situation was "distressing" there was no role for the federal government in law reform.

"Surrogacy is a matter for the state governments and while I can understand the interest in this right around the country I think that there are some matters that are quite properly left to the state governments and I certainly don't intend to change the ordinary constitutional arrangements," Mr Abbott said.

The opposition has called for an inquiry into overseas commercial surrogacy.

Labor's foreign affairs spokeswoman, Tanya Plibersek, said nationally consistent laws on international surrogacy were needed.

"It is important that we have better, more nationally consistent rules relating to commercial surrogacy," Ms Plibersek said.

"Of course commercial surrogacy is banned in Australia but we know that state to state there are different applications of these laws as they relate to commercial surrogacy overseas.

"Clarity and national consistency would be beneficial…..It is very important now that we hear from the federal government what their plans are to encourage consistency in the application of state laws and to clarify the situation as it relates to commercial surrogacy arrangements overseas."

The Family Law Council looked at the situation surrounding international surrogacy last year. It found children born overseas as a result of commercial surrogacy were potentially legally vulnerable.

Read more:

Tuesday, October 7, 2014

National laws for international Indians

The year 2015 will mark 100 years of Mahatma Gandhi’s return to India from South Africa and the Pravasi Bhartiya Divas celebrations to welcome overseas Indians to their homeland will be held in Ahmedabad on January 9. Prime Minister Narendra Modi, in his address to a mammoth gathering at Madison Square Garden in New York, offered lifetime Indian visas to Persons of Indian Origin (PIOs) by merging the PIO and Overseas Citizens of India schemes. As a result, the Ministry of Home Affairs issued a notification on September 30 to the effect that the PIO card shall be valid for life and the PIO card holder shall be exempt from police reporting and registration with the Foreigners Regional Registration Office. So far so good. But what will happen when an influx of Non-resident Indians (NRIs) takes place? While we euphorically laud these welcome gates, let us introspect on what laws concerning family and society we offer to our NRI brethren. In a fast-changing scenario of growth and development, it remains to be seen if these laws have kept pace with evolving societal needs. Thus, we have to first make a report card to evaluate our laws and their need.

Outdated laws
According to statistics of the Ministry of Overseas Indian Affairs, over 21,909,875 NRIs have inhabited, settled and thrived in almost 200 countries across the globe. Their actual numbers may be roughly close to 30 million. Undoubtedly, international Indians are an entity by themselves. Thus there is a dire need for a global law to govern their conflicts. The link and retention of their ties with their extended families in India and abroad has found expression in issues relating to immigration, nationality, marriage, divorce, forced marriages, inter-parental child removal, spousal maintenance, division of matrimonial property, inter-country adoptions, succession and inheritance, tenancy of Indian property and surrogacy arrangements. Foreign courts and overseas law practitioners are at sea attempting to resolve these problems given that Indian laws pertaining to these issues have not been amended or updated. The applicability of foreign laws, the validity of judgments pronounced overseas and the verdicts of Indian courts which need expounding, are issues that require interpretation by experts. Personal laws governing global Indians — irrespective of the fact that NRIs have foreign nationalities and overseas citizenships — are all more than five decades old. They do not meet the test of time. They have outlived their utility and do not answer current day family problems in the international perspective. Clash of jurisdictions further compounds problems and result in broken homes and divided families. Indian laws on the subject of custom, marriage, divorce, spousal maintenance, domestic and inter-country adoptions, child abduction, surrogacy, child rights, matrimonial settlements, besides issues of nationality and citizenship found in existing statutory enactments, do not take a call when there are inputs from foreign laws or when there is reconcilement with an overseas court judgment. Interpretation of foreign courts on family law has further coloured the scenario as they provide new dimensions not visualised by Indian law. NRIs searching for relief measures face multiple jurisdictional clashes and are unable to reconcile their rights with corresponding obligations in Indian laws.

Private international law attempts to provide comprehensive answers to these problems. Conventional statutory laws will not address the daily dilemmas of the Indian diaspora. A panacea is thus sought to be a universal answer for aggrieved spouse, the foreign litigant, an overseas practitioner, or any lay person who simply wants to know where he stands. Case law is quoted for reliance but is no permanent answer. Unique case references are not the remedy. What is needed is a permanent answer.

Legislative solutions
The only way this can be resolved is by providing legislative solutions. This is the crying need of the hour before we put up welcome NRI signs. There are a wide range of issues that cause disputes between NRIs across borders. For instance, the law of spousal maintenance in India needs to be delved into. Child laws, issues relating to human smuggling, illegal immigration, business immigration, dual nationality and citizenship perspectives also need to be addressed.

Human rights and the criminal justice system need application in Indian laws. Predicaments concerning surrogacy need dire attention. Law and societal practices need to be in tandem. Our laws have to meet the needs and demands of international Indians. It is no longer a case of international law and Indians; it is about international Indians and the law. Besides discarding outdated legislation, legislators seriously need to make new laws for international Indians. For instance, innocent children are made victims of spousal fights across borders and are used to settle personal disputes. Likewise in commercial surrogacy, a regulatory law is required. Human smuggling and illegal immigration need central laws to save precious human lives who are exploited by unscrupulous agents. Spousal maintenance rights and marital laws need to be updated to keep up with international family law obligations. International adoption of children needs to be governed by a new regulatory law.

As of now, energy has been focussed on commercial laws, giving step motherly treatment to laws which govern family and society in India. Nothing has moved in 50 years; this must change. If we are to invite NRIs, we must first give them a stable home, a happy family life and a comfortable society to live in. Indian laws can no longer exist in isolation; they must be reconciled with laws abroad.


Surrogacy: High Court grants parental order after deadline

The UK's High Court has granted a parental order following surrogacy despite a six-month deadline for making them having passed, describing strict enforcement of the deadline as 'almost nonsensical'.

The law states that intended parents 'must' make an application for a parental order - for example, to become a surrogate-born child's legal parents and to acquire parental responsibility - within six months of the child's birth. The High Court has ruled, however, that although it was 'common belief' that the court cannot make orders outside of this time (and that alternatively, an adoption order may be sought to acquire parental rights), it may be prepared to accept late applications.

In his judgment, Mr Justice Munby, President of the Family Division, said: 'Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so'.

'I assume Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe the law as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical'.

The case concerned a child born in 2011 to a surrogate mother in India using the intended father's sperm and donated eggs. The intended parents were unaware, however, of the need to apply for a parental order until the father made an application for a residence order upon their separation. The court handing the application pointed out that neither intended parent had parental responsibility.

Parental responsibility confers the right to make important decisions about a child's upbringing, including medical care and education. Legal parenthood affects inheritance and financial responsibilities. However, the court emphasised that a parental order, which grants legal parenthood from which parental responsibility follows, may have wider meanings for families.

'A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences', Justice Munby stated.

Commenting on the decision, law firm Natalie Gamble Associates wrote that there are many more children born following surrogacy with parents who are not their legal parents. 'We know there is a big gap between the numbers of parental orders being made (213 in 2012) and the numbers of children being born through surrogacy to UK parents (reportedly 1,000 cases per year in India alone)', it wrote.

'For children living in the black hole of unresolved legal status, today's ruling is welcome because it means the door may not be closed to a remedy', it said, adding: 'The case also demonstrates, yet again, just how out of date the UK’s surrogacy laws are'.


Thursday, October 2, 2014

SI is closed on Thursday & Friday i.e. 2nd October & 3rd October, 2014

SI is closed on Thursday & Friday i.e. 2nd October & 3rd October, 2014 on occasion of Mahatma Gandhi Jayanti & Dussera hence there could be delay in reply to the emails. 

However, you may always give us a call in an emergency situation.

Wednesday, October 1, 2014

7th day of Navratri at SurrogacyIndia : Dedicated to Goddess Kalratri

The 7th day of Navaratri is dedicated to Maa Kalratri. Ganesha advises to wear Blue so SurrogacyIndia is worshiping by wearing the color which is dedicated today. — at SurrogacyIndia.