Saturday, November 21, 2009

Legal aspects of commercial surrogacy in India

There has been a recent discussion about the legality of signing surrogacy contracts in India vs signing contracts in an IP's home country. The issues raised are:

1. Will a commercial surrogacy contract signed in an IP's home country hold up in a court of law in India?

2. Is it illegal to sign a commercial surrogacy contract for a surrogacy agreement that will take place in India, in a country (eg. Australia, Italy) where commercial surrogacy is illegal.

Commercial surrogacy contracts signed in India have never been tested in a court of law. A recent Gujarat High Court ruling found twins born through a commercial surrogacy agreement through an Indian surrogate are legally the child of the surrogate mother and are therefore Indian citizens.

I assume in this situation the IPs, SM and her husband signed a standard contract similar to the contracts we all sign - in which the SM and her husband waived all parental rights to and responsibilities for the children born. My understanding of this ruling clarifies a surrogate mother can not waive her legal rights and responsibilities, no matter what contract she signed.

So where does this leave IPs? In the absence of Indian surrogacy laws - vulnerable.

The ruling sets a precendent that proffers Indian citizenship on a child that is born through a surrogacy agreement in the event where the children were not granted citizenship by the country of the intended parents, which was, in this case, Germany.

How does this ruling affect IPs who are citizens of countries other than Germany? Hopefully none of us will ever face this. Many IPs from Australia, USA, UK and other countries have been granted citizenship for their babies and brought them home. It is clear that citizenship will be granted to babies born through surrogacy provided the rules and procedures set out by the embassy or HC of the IP's country are satisfied.

The point of law in the Gujarat High court ruling was about lack of citizenship for the twins born through the surrogacy agreement. It was not a case about a surrogate mother wanting to keep a baby, nor about a surrogate mother breaching a contract.

What would happen if the SM wanted to keep the baby? Where there is dispute about the parentage and citizenship of the baby, would the Gujarat High Court ruling apply and the child be granted Indian citizenship? Would dual citizenship be granted? Would the IPs have any right to take a baby with Indian citizenship out of India? This one has the Indian lawyers scratching their heads. I guess the answer is, it may, or it may not, we won't know until this is tested.

It is highly unlikely that an Indian surrogate would want to keep a surrogacy born baby. Who needs or wants another mouth to feed? And haven't they signed a contract that waives all parental rights to and responsibilities for the baby anyway? Surely they would be breaching their contract if they decided to keep baby.

What if there is a breach of contract?
If a surrogate and/or her husband breach any aspect of a surrogacy contract, what recourse do the intended parents have? We could sue the surrogate mother and husband, and if we won, what be the remedy? Monetary compensation awarded against the SM and her husband? There's no point suing people who don't have assets. And would any of us do this? I doubt it.

Would financial compensation make up for every breach of contract? If an SM decided, against the terms of the contract, to have the pregnancy terminated, and the IPs successfully sued her for breach of contract, no amount of money would make up for the loss of the fetus, nor bring the fetus back.

My point here is that no matter what we do to try to protect ourselves as IPs, no matter how many clauses we write into standard contracts and now matter how many people witness our signatures, nor in what country, and no matter how legally water tight we try to make our contracts, if it came to it, they offer very little protection if they cannot be enforced.

The value of contracts
We need our contracts to show the intention of all parties entering into the agreement. We need the contracts to satisfy embassies in order to obtain citizenship and passports for our babies. We need the contracts to send a clear message to both the surrogates and the IPs what is expected of each party to the agreement.

But can they be enforced if it came to that? I think the answer is no.

Can we sign our contracts in our home countries rather than in India?

It is not always possible to sign a contract in India. If your SM changes and your current contract becomes invalid, do you have to fly back to India to sign another contract? One Mumbai clinic says you have to. Another Mumbai clinic says you can send your sperm and not even go to India, just come back nine months later and pick up your baby. Another clinic says it's fine to sign in your home country given that all the surrogacy contract amounts to is a document setting out intentions and conditions to make IPs feel better, but is, ultimately unenforceable.

Who is right? I don't know. One lawyer in Delhi says the contract is not valid if signed in an IP's home country, it has to be signed in India. Another lawyer in the same city advises that surrogacy contacts aren't enforceable anyway, and it is only the embassy of the country where the IPs are citizens that may not accept a surrogacy contract signed in a home country.

As such, I've contacted the Australian High Commission to get clarification on this. The question I want answered is "If we sign our contracts in Australia, will it be accepted by the Australian High Commission in India as a valid contract?"

Perhaps this is a question all of us should have asked our embassies before we entered into our surrogacy agreements.

Finally, on a side note. Is it illegal to enter into a commercial surrogacy contract if you are resident of a country that bans commercial surrogacy?

I do have an answer for this one as far as Australia is concerned. With the exception of Queensland, there is no state, territory or federal legislation in Australia that makes it illegal for an Australian citizen to enter into a commercial surrogacy agreement in a foreign country. If there was, the Australian High Commission would be prevented from granting citizenship to Australian babies born through surrogacy in India, USA or any other country. Fortunately Queensland surrogacy laws have recently changed. While I am not up-to-date on the specifics of new laws, the old law had a provision that made it illegal for a Queensland resident to enter into a commercial surrogacy agreement in any country. Has this been repealed? I don't know.

There are various laws in each Australian state and territory relating to altruistic and commercial surrogacy. In same states there are no laws. One thing is clear, it is illegal to enter into, promote, facilitate, pay financial consideration or receive financial reward for the purposes of commercial surrogacy within Australia.

Our advice from the Attorney-General In WA is that WA surrogacy law relates only to activities that occur within WA. The Surrogacy Act 2008, legislation I am very familiar with, does not apply to commercial surrogacy in India. Our advice from the policy analysts who are working on possible legislation for a uniform national surrogacy law is that no-one in remotely interested in what goes on in India. Our advice from the lawyer engaged by a couple who openly promote commercial surrogacy in India is that provided the commercial surrogacy does not take place in Australia, no laws are broken.

To the Australian couples who receive a 100,000 rupee discount (ie reward) off their surrogacy account if they refer a friend, our advice is that you are not breaking Australian law, regardless of the state you are resident of. You won't be going to jail, and neither will I.

We can apply Fight Club rules here: what happens in India, stays in India.

As such, the smug smile remains on my pretty face : )))

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