Surrogacy: Offence, Commercialization & Legalization.

Comparative Study of US, Singapore, Australia & Indian Legal Regime

Submitted by

Manu Gupta
Of

Division C

Roll No 41
Of

BBA, LL.b

Symbiosis Law School, NOIDA Symbiosis International University, Pune

In

February, 2013

Under the guidance of

Mr. Ashok Wadje (Assistant Professor)

Course in Charge, Family Law II

CERTIFICATE

The

project

entitled

Surrogacy:

Offence,

Commercialization

&

Legalization: Comparative Study Of US, Singapore, Australia & Indian Legal Regime Submitted to the Symbiosis Law School, NOIDA for Family Law - II as part of internal assessment is based on my original work carried out under the guidance of Mr. Ashok Wadje from January 7th, 20132 to March 19th, 2013. The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate:

Date:

19-03-2013

ACKNOWLEDGEMENT

First of all I wish to dedicate my sincere thanks and acknowledgements to Dr. C.J. Rawandale for his support and motivation.

I wish to acknowledge Mr. Ashok Wadje for providing me with the opportunity to enhance my knowledge by submitting this report and all the support.

Index

Particulars

Pg no.

Introduction ..................................................................................... 1

United States ................................................................................... 2 Surrogacy Laws in different parts of United States: ............................ 3

India ............................................................................................... 7 Current Situation ......................................................................... 11

Singapore ...................................................................................... 12

Australia ........................................................................................ 14 Reforms ..................................................................................... 15

Conclusion ..................................................................................... 17

Bibliography................................................................................... 18

Introduction

In Surrogacy, one woman acts as a surrogate or a replacement mother and gets pregnant, for another woman, sometimes called the intended mother, who either cannot produce fertile eggs or cannot carry a pregnancy. In commercial surrogacy, the surrogate is paid a fee plus any expenses incurred in her pregnancy. In altruistic surrogacy, the surrogate is paid only for expenses incurred or is not paid at all. Some feminists oppose surrogacy because of its political and economic context. They disagree with the notion that women freely choose to become surrogates. They argue that coercion at the societal level, rather than the personal level, causes poor women to become surrogate mothers for rich women. If surrogacy contracts are legalized, they maintain, the reproductive abilities of a whole class of women will be turned into a brokered commodity. Some feminists have gone so far as to call surrogacy reproductive prostitution. Surrogacy is the only way to overcome both biological and social infertility. It provides medically infertile couples as well as socially infertile individuals who are not willing to get married with a chance to have a child of their own. Blocking every way for minority members to obtain the treatment they desire would be dangerous, as it could increase feelings of frustration, suppression, and indignation. Unjust and illogical bans deny people this right and lead to reproductive surrogate tourism. Legalization of gestational surrogacy aims to defend the surrogates interests as well as those of the intended parents and the baby born after the surrogacy.

United States

Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support. States generally considered to be surrogacy friendly include

California, Illinois, Arkansas and Maryland, among others. For legal purposes, what matters is where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.

Surrogacy Laws in different parts of United States:

Arkansas Surrogacy Law Arkansas law provides for surrogacy contracts, but it is unclear how courts would apply the law to surrogacy situations involving lesbian, gay, bisexual and transgender (LGBT) individuals and couples.1 California Surrogacy Law California is accepting of surrogacy agreements and upholds agreements that include lesbian, gay, bisexual and transgender (LGBT) individuals. While the state has no statute directly addressing surrogacy, Californias courts have used the states Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases in the country regarding surrogacy rights (Johnson v. Calvert) was decided in California.2 D.C. Surrogacy Law All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are prohibited by law in the District of Columbia.3 Florida Surrogacy Law Florida law explicitly allows both gestational surrogacy agreements and traditional surrogacy agreements, but neither is available to same-sex couples.4 In the 2000 case of Lowe v. Broward County, a Florida District Court of Appeals noted that the right to enter into surrogate-parenting agreements

1 2 3 4

In re Adoption of K.F.H., 844 S.W.2d 343 (Ark. 1993); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998) D.C. CODE Sec. 16-401, 402 (2009) Wakeman v. Dixon, 921 So. 2d 669 (Fla. Dist. Ct. App. 2006)

is reserved for married couples only and is one of the many rights that domestic partners are denied. While the ruling concerned only the Broward County Domestic Partnership Act, it is possible that Florida courts could interpret other county domestic partnership laws in a similar way. Hawaii Surrogacy Law There are no statutory provisions or published cases dealing with the issue of surrogacy. Michigan Surrogacy Law All surrogacy agreements are prohibited by law in Michigan. Michigan has very strict laws prohibiting surrogacy contracts. State law not only holds these agreements unenforceable, but also imposes fines (up to $50,000.00) and jail time (up to five years) on anyone who enters into such a contract. In the 1992 case of Doe v. Attorney General, several would-be participants in surrogacy arrangements challenged the law, arguing that the state had no compelling interest in prohibiting surrogacy. A Michigan Court of Appeals disagreed and found three compelling state interests: (1) preventing children from becoming commodities; (2) serving the best interests of children; and (3) preventing the exploitation of women. Further clarifying the surrogacy statute, the Court noted that any agreement involving conception and relinquishment of parental rights by the surrogate is void.5 New York Surrogacy Law All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are void and unenforceable under New York law.

Doe v Attorney General, 487 N.W.2d 484 (Mich. Ct. App. 1992)

In the 2004 case of Doe v New York City Bd. of Health 6, the intended mother of triplets was not required to provide DNA evidence to be granted parental rights after the gestational surrogate (someone who is not genetically related to the child she is carrying) relinquished her parental rights. South Carolina Surrogacy Law There are no provisions in South Carolina law regarding surrogacy, but the limited case law indicates an acceptance of surrogacy contracts. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.7 Texas Surrogacy Law Texas law explicitly allows gestational surrogacy agreements, but it appears to exclude same-sex couples.8 Washington Surrogacy Law Washington allows uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts. In 2005, the Washington Supreme Court decided the case of In re Parentage of L.B., which concerned a lesbian couple who separated after they had a child through artificial insemination. The Court determined that the partner who was not genetically related to the child had standing to argue that she was a de facto parent of the child. Although this case did

6 7 8

Doe v New York City Bd. of Health, 782 N.Y.S.2d 180 (N.Y. Sup Ct. 2004) Mid-South Ins. Co. v. Doe, 274 F.Supp.2d 757 (D.S.C. 2003). TEX. FAM. CODE Sec. 160, 754, 762.

not involve a surrogacy agreement, it shows that the Washington courts are willing to at least consider granting equal parental rights to LGBT individuals and couples.

India

Although commercial surrogacy is legalized in India since 2002 but there is an immediate need of some strong legislations as the practice of surrogacy has no longer remained just a practice but has turned into a business and India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism and also more and more commercial surrogacy programs should be introduced which may take the proper medical, nutritional and overall care for the surrogate mothers. An article stressing the artificial reproduction techniques and subrogation in the Indian context and also including the contract of sale between the married couple and the surrogate was written by Deepa Kharb, a Lecturer in Law at the Institute of Law and Management Studies in Gurgaon, India. Considering the risks born by the surrogate mothers from India and those in more regulated countries, it seemed pretty obvious that the former was bearing the brunt of it. Afar from the right to the child or the physical risks of pregnancy, Indian medical guidelines allow doctors to implant five embryos into a surrogate, whereas under the British law, the permissible limit is two while many European countries are even moving towards a single embryo implant. Apart from this, according to the British laws, a surrogate mother who has provided an egg can claim the baby back within two years of the childs birth. In India though, the surrogate mother has no right over the child after the delivery is made. She can only cancel the contract when it is established that it was not a valid one under Section 23 of the Indian Contract Act, 1872.

Until very recently, there has been a dearth of laws on the matter of surrogacy in India, which has been made legal here since 2002. The Indian Council for Medical Research has laid down certain guidelines for the clinics that undergo Artificial Reproductive Technologies (ART) and their dealing with the surrogates. The Indian Ministry of Women and Child Development in February 2008, considered recommending legislations to govern surrogacy, but so far this is not imminent. Due to the lack of regulatory policies, there remains little legal remedy for rural Indian women if complications arise in the pregnancy. Dr. Aniruddha Malpani, director of the Malpani Infertility Clinic, states that, a legal vacuum persists where even a successfully resolved dispute could take up to 10 years in the prevalent court system of this land. There are this pros and cons to the lack of government involvement. On the one hand, growth in the private sector can proceed without heavy taxation or restrictive barriers. However, it is not clear if a black market of surrogacy will develop, or whether these surrogacy contracts will hold in a court of law. It is owing to the sole reason that if in case of any arising disputes, there are just not adequate legal mechanisms to protect the interests of the parties involved. The need to look closely towards surrogacy in India has been a widely suggested point by think tanks and social experts. People call it as an industry with a turnover of few million dollars, although the term feels very offensive and objectionable for a few. Whatever you call it, certainly the popularity and increasing demand of India as a surrogacy hub requires some fundamental things in place. There has been tremendous increase in the surrogacy and related activities in specific geographical belts of India and it has become a big source of income. There is no regulation and control towards the overall process and specialists are raising issues and concerns about human values, ethical point of view, fundamental rights, and safety and health issues. There was proposed draft presented in 2010 with the intention of covering all these issues in a
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comprehensive manner and to ensure complete coverage. However, surely there is a need of effective implementation of the Assisted Reproductive Technology Bill, commonly known as ART bill. There is certainly no doubt that the bill has been drafted very comprehensively and it covers almost all aspects of surrogacy and related activities. The payment directions are well thought and the surrogate mother would receive the amount in five instalments. The maximum chunk of 75% would be made as the fifth and last instalment and that too after delivery of the baby. It surely protects the rights of the intended parents, but it is certainly not making justice to the pain and labour of the surrogate mother. This is one area that surely needs some revision. The bill suggests that only gestational surrogacy would be allowed in India and genetic surrogacy would not be legal. This is done to avoid the legal complexities of the surrogate mother coming forward asking claim over the baby. It is surely a good revision and avoid unnecessary conflicts. The ART draft bill has changed the maximum live births for a surrogate mother to five that was earlier three. It has also mentioned the maximum number of embryo transfers to three. Health experts have few concerns about it and suggest revision. The insurance related matters also need a reform and more elaborate descriptions in order to protect the rights of the surrogate mother. ART bill suggests that surrogate baby can be available to couples and single person as well. Couple is defined as two people with sexual relationship legal according to Indian legislation. However, it does not state anything clearly about gay couples. The home ministry's guidelines tightening visa norms for foreigners seeking children through an Indian surrogate have created confusion in various quarters. Foreigners who are midway in surrogacy procedures are
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worried that their future hangs in balance, even as doctors question the rationale behind some new provisions. There is, however, no denying the need for regulation given that the passage of the Assisted Reproductive Technology (ART) Regulation Bill 2010 has been long overdue.

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Current Situation

The home ministry has introduced new visa norms for foreigners seeking to rent-a-womb in India with stringent eligibility criteria. Only couples married for two years and those whose countries recognize surrogacy, among other clauses, could apply for a medical visa for surrogacy. They thus disqualify gay couples and single individuals. The new provisions have brought in a dilemma for several gay foreigners and singles, which are undergoing ART procedures in India before the norms came in. The ministry has not given any date of commencement for the guidelines.

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Singapore

When a couple get married, the primary objective for most, other than companionship, is to start a family. Disappointment is natural should the woman be unable to carry a child. With more women waiting longer to get married, infertility will be a common problem. In extreme cases, a man might abandon his infertile wife to look for a woman who is able to carry his child. In such situations, the husband cannot be blamed. Surrogate pregnancy is essentially the use of a woman's womb to carry a child which is not biologically hers. If surrogacy is legalised, it would give infertile couples a chance to have children. Singapore could consider allowing surrogacy if the following conditions are met: The surrogate mother and her husband must agree to help the natural parents carry their child to term, and to freely and readily hand over the child to his/her natural parents when the baby is born. Only a fertilised egg, which is the result of the insemination of the natural mother's egg with the natural father's sperm, should be implanted in the surrogate mother's womb. The natural father must agree to bear all medical, hospitalisation, laboratory, pharmaceutical and therapy expenses incurred as a result of the surrogate mother's pregnancy, which are not covered by her insurance policies. The costs should also include extraordinary medical expenses for the treatment of emotional, mental or other problems related to the surrogate pregnancy. The natural mother must be unable to carry her own child, due to medical or other reasons. The surrogate mother and her husband should be aware of, understand and agree to assume all risks, including death, which are incidental to conception, pregnancy, childbirth, and which include, but are not limited to, complications subsequent to such childbirth. An ethics committee should be formed to help ensure that couples who enter into surrogacy agreements have understood and met the conditions, and approve of the arrangement. With the declining birth

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rate, surrogate pregnancy will provide a solution for infertile couples seeking to have children, and also help beef up our population. This option should be seriously considered. There are no laws in Singapore that explicitly prohibit surrogacy here. But under Ministry of Health (MOH) guidelines, all health care institutions providing assisted reproduction services are not allowed to carry out surrogate arrangements.

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Australia

In all states in Australia (except Tasmania which bans all surrogacy under the Surrogacy Contracts Act 1993), altruistic surrogacy has only recently become legal. However, in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all and there are no plans to introduce laws on surrogacy into the NT Legislative Assembly at any foreseeable point in the future. The history of the law around Australia is that Victoria changed their legislation so that since 1 January 2010, under the Assisted Reproductive Treatment Act 2008 altruistic surrogacy within the state is legal, however commercial surrogacy is illegal. Since 1 June 2010 in Queensland, altruistic surrogacy is legal under the Surrogacy Act 2010 No 2. Commercial surrogacy is illegal under the legislation. Similarly, altruistic surrogacy in both New South Wales and the Australian Capital Territory is legal under the Surrogacy Act 2010 No 102 and the Parentage Act 2004, respectably. In Western Australia (under the Surrogacy Act 2008) and South Australia (under the Family Relationships Act 1975) altruistic surrogacy is only legal for couples consisting of the opposite sex (single people and same sex couples are banned from altruistic surrogacy). Sometime in 2011 Tasmania will introduce the Surrogacy Bill to the parliament, after a community consultation process. Australia should legalise commercial surrogacy to stop the exploitation of poor women and protect the legal status of children caught up in the booming overseas surrogacy trade, according to the Chief Federal Court Magistrate.

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Reforms

Under Chief Magistrate John Pascoe's proposed commercial surrogacy scheme, overseas surrogacy would remain banned, therefore reducing the number of Australian couples using overseas clinics that he says often underpay and coerce poor women. ''We would know women here wouldn't be forced or threatened to carry a child and that they will be paid more than a few hundred dollars and receive proper medical care,'' Mr Pascoe said. Altruistic surrogacy, where the woman carrying the child is not paid, is legal in all states but commercial surrogacy is banned in Australia. Overseas commercial surrogacy has also been criminalised in NSW, Queensland and the ACT but that has not stopped hundreds of prospective parents travelling to countries such as India where for less than $100,000 they can have a baby via a surrogate. The number of Australian babies born to overseas surrogate mothers leapt from 97 in 2009 to 296 last year, according to research by advocacy group Surrogacy Australia. More than 250 children have been born to overseas surrogates this year. Mr Pascoe said his proposed regime, which would require parents and the surrogate to enter into a contract that would protect the rights of both parties, promotes the best interests of surrogate children. ''The status of the newly born child is therefore beyond doubt and the law can provide provisions and benefits for the child as an Australian citizen,'' he said. ''Right now, children of overseas surrogates face a very uncertain legal situation regarding parentage and nationality.''

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Many Australian couples had been stranded overseas, unable to gain citizenship for their surrogate child because of the ''ambiguities about the definition of parent and child in the Citizenship Act'', Mr Pascoe said. The Attorney-General, Nicola Roxon, has charged the Family Law Council to review the Family Law Act and report back by December next year. The chair of the council, Associate Professor Helen Rhoades, said the review was timely as parentage laws were not keeping pace with the rapid advancement of assisted reproductive technology. The council will call for public submissions this month. Sam Everingham, the president of Surrogacy Australia, applauded the proposal as an improvement of a system that had largely failed but said it was naive of Mr Pascoe to think people would comply with the ban on overseas arrangements. ''Some states have already banned it and Australians are still going overseas,'' he said. ''I'm also worried about over-regulation, because it's caused huge problems for parents who want to adopt children from overseas.'' Melbourne-based bioethicist Leslie Cannold opposes commercial

surrogacy, insisting same exploitative elements suffered by women in developing countries could exist in Australia under Mr Pascoe's proposed system. ''We should not create a situation in which we coerce people economically,'' she said. Kelly Hillsley gave birth to a surrogate child for an acquaintance in 2004, at a time when she says laws were underdeveloped and confusing. ''If it was regulated and people knew what to do and expect, the whole process would have been easier,'' the mother of two said. But she is concerned legal commercialisation would still allow people to profit by exploiting the desperation of infertile couples.

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Conclusion

This project report has provided a descriptive account of the legal responses to and opinions about surrogate motherhood. In brief, while most other nations have responded to surrogacy by quickly enacting laws prohibiting the practice, the response in the United States has been less quick and more ambivalent and varied. Hesitancy regarding surrogate parenting is apparent in the lack of national legislation, in the inability of the majority of states to pass laws on the issue, and in the history of legislation in the minority of states that have enacted laws specically on surrogacy. In these last two groups, which include New York and California, further evidence of the lack of consensus about surrogate motherhood is provided by the diversity of laws that have been proposed and enacted on the issue. By exposing the degree and types of legislative reaction to surrogacy, this chapter has shown how this problem was dened and responded to in the institutional setting of legislative politics. As with other social problems, the emergence of surrogacy as a publicly perceived social problem was connected to other social issues and controversies of the time.

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Bibliography

Han, E. (2012, December 9). Call to reform surrogacy laws. Kharb, D. (n.d.). Artificial reproduction techniques and subrogation. Rajadhakshya, M. (2013, January 19th). New surrogacy norms will hit genuine couples. Times Of India. Surrogacy Laws. (n.d.). Retrieved March 7, 2013, from Select surrogate: http://www.selectsurrogate.com/surrogacy-laws-by-state.html Surrogacy Laws by country. (n.d.). Retrieved March 7, 2013, from Wikipedia: http://en.wikipedia.org/wiki/Surrogacy_laws_by_country

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