 The legal aspects
surrounding surrogacy are complex, diverse and mostly unsettled. In most of
the countries world over , the woman giving birth to a child is considered
as the Child's legal mother. However, in very few countries, the Intended
Parents are be recognized as the legal parents from birth by the virtue of
the fact that the Surrogate has contracted to give the birth of the Child
for the commissioned Parents. India is one country amongst the few, which
recognize the Intended/ Commissioning Parent/s as the legal parents. Many
states now issue pre-birth orders through the courts placing the name(s) of
the intended parent(s) on the birth certificate from the start. In others
the possibility of surrogacy is either not recognized (all contracts
specifying different legal parents are void), or is prohibited.
Australia
In all the states
of Australia, the surrogate mother is regarded/considered by the law to be
the legal mother of the child and any surrogacy agreement giving custody to
others is void and unenforceable in the courts of Law. In addition 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 seems no near future plans to
introduce laws on surrogacy into the NT Legislative Assembly.
Usually couples
who make surrogacy arrangements in Australia must adopt the child rather
than being recognized as birth parents, particularly if the surrogate
mother is married. After the announcement, Victoria changed their legislation
since January 1st, 2010, under the Assisted Reproductive Treatment
Act, 2008, to make altruistic surrogacy within the state legal, however
commercial surrogacy is still illegal.
Since June
1st, 2010 in Queensland, altruistic surrogacy became legal under the
Surrogacy Act, 2010. Recently North South Wales (NSW) has come up with
Surrogacy Bill, with it being passed by the Legislation but the
Proclamation of the same is yet to take effect and it seems that the same
will happen by Feburary, 2011 thereby prohibiting commercial surrogacy and
making Altruistic Surrogacy the Law of the day.
Canada
Commercial
Surrogacy is prohibited under the Assisted Human Reproduction Act,
2004. Altruistic surrogacy remains legal.
In the province of
Quebec, contracts that involve surrogacy are unenforceable.
France
In France, since
1994 any surrogacy arrangement whether it is commercial or altruistic is
illegal, unlawful and prohibited by the law.
Hungary
Commercial surrogacy is
illegal in Hungary.
India
Commercial
surrogacy has been legal in India since 2002.
India is emerging
as a leader in international surrogacy and a sought after destination in
surrogacy-related fertility tourism. Indian surrogates have been
increasingly popular with fertile couples in industrialized nations because
of the relatively low cost. Indian clinics are at the same time becoming
more competitive, not just in the pricing, but in the hiring and retention
of Indian females as surrogates. Clinics charge patients roughly a third of
the price compared with going through the procedure in the UK.
Surrogacy in India
is relatively low cost and the legal environment is favorable. In 2008, the
Supreme Court of India in the Manji's case (Japanese Baby) has held that
commercial surrogacy is permitted in India with a direction to the
Legislature to pass an appropriate Law governing Surrogacy in India. At
present the Surrogacy Contract between the parties and the Assisted
Reproductive Technique (ART) Clinics guidelines are the guiding force.
Giving due regard to the apex court directions, the Legislature has enacted
ART BILL, 2008 which is still pending and is expected to come in force
somewhere in the next coming year. The law commission of India has
specifically reviewed the Surrogacy Law keeping in mind that in India that
India is an International Surrogacy destination.
International
Surrogacy involves bilateral issues, where the laws of both the nations
have to be at par/uniformity else the concerns and interests of parties
involved will remain unresolved and thus, giving due regard to the concerns
and in order to prevent the commercialization of the Human Reproductive
system, exploitation of women and the commodification of Children, the law
commission has submitted it’s report with the relevant suggestion:
The Law Commission of India has submitted the 228th
Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE
TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A
SURROGACY.” The following observations had been made by the Law Commission:
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(a)
Surrogacy arrangement will continue to be governed by contract amongst
parties, which will contain all the terms requiring consent of surrogate
mother to bear child, agreement of her husband and other family members for
the same, medical procedures of artificial insemination, reimbursement of
all reasonable expenses for carrying child to full term, willingness to
hand over the child born to the commissioning parent(s), etc. But such an
arrangement should not be for commercial purposes.
(b) A
surrogacy arrangement should provide for financial support for surrogate
child in the event of death of the commissioning couple or individual
before delivery of the child, or divorce between the intended parents and
subsequent willingness of none to take delivery of the child.
(c) A
surrogacy contract should necessarily take care of life insurance cover for
surrogate mother.
(d) One of
the intended parents should be a donor as well, because the bond of love
and affection with a child primarily emanates from biological relationship.
Also, the chances of various kinds of child-abuse, which have been noticed
in cases of adoptions, will be reduced. In case the intended parent is
single, he or she should be a donor to be able to have a surrogate child.
Otherwise, adoption is the way to have a child which is resorted to if
biological (natural) parents and adoptive parents are different.
(e)
Legislation itself should recognize a surrogate child to be the legitimate
child of the commissioning parent(s) without there being any need for
adoption or even declaration of guardian.
(f)
The birth certificate of the surrogate child should contain the name(s) of
the commissioning parent(s) only.
(g)
Right to privacy of donor as well as surrogate mother should be protected.
(h)
Sex-selective surrogacy should be prohibited.
(i) Cases
of abortions should be governed by the Medical Termination of Pregnancy Act
1971 only.
The Report has come largely in support of the Surrogacy in India,
highlighting a proper way of operating surrogacy in Indian conditions.
Exploitation of the women through surrogacy is another worrying factor,
which the law has to address. The Law Commission has strongly recommended
against Commercial Surrogacy. However, this is a great step forward to the
present situation. We can expect a legislation to come by early 2011 with
the passing of the Assisted Reproductive Technology Bill aiming to regulate
the surrogacy business.
Israel
Israel the first
country in the world to implement a form of state-controlled surrogacy in
which each and every contract must be approved directly by the state. In
March 1996, the Israeli government legalized gestational surrogacy under
the "Embryo Carrying Agreements Law." Surrogacy arrangements are
permitted only to Israeli citizens who share the same religion. Surrogates
must be single, widowed or divorced and only infertile heterosexual couples
are allowed to hire surrogates. Due to the numerous restrictions on
surrogacy under Israeli law, the Israeli intended parents have turned to
International Surrogacy. India is the preferred destination because of its
low costs. Then Intended Parents also turn to US surrogates where an added
bonus is an automatic US citizenship for the newborn.
Japan
In March 2008, the
Science Council of Japan proposed a ban on surrogacy and said that doctors,
agents and their clients should be punished for commercial surrogacy
arrangements.
Netherlands and Belgium
Commercial
surrogacy is illegal in Belgium and the Netherlands.
United Kingdom
Surrogacy
arrangements have been legal in the United Kingdom since 2009. Whilst it is
illegal in the UK to pay more than expenses for a surrogacy, the
relationship can be recognized under Section 30 of the Human Fertilization
and Embryology Act, 1990 under which a court may make parental orders
similar to adoption orders. How this came about is one of those occasions
when an ordinary person can change the law.
United States
Many states have
their own state laws written regarding the legality of surrogate parenting.
It is most common for surrogates to reside in Florida and California due to
the surrogacy-accommodating laws in these states. With the accommodating
laws of the State of California and the long overseas deployments of
husbands, wives have found surrogacy to be a means to supplement military
incomes and to provide a needed service. It is illegal to hire a surrogate
in New York, and even embryonic transfers may not be done in New York. At
this point, the laws surrounding surrogacy are well defined in the State of
Pennsylvania, and surrogacy is beginning to become common in the state of
Delaware.
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