Showing posts with label surrogacy india. Show all posts
Showing posts with label surrogacy india. Show all posts
Sunday, 10 June 2012
Surrogacy in India - why the UK law needs to change
Indian surrogacy is a hot media topic, with several stories over the past week about couples being stuck in India waiting for British passports for their biological children. As far as we are concerned, this isn’t really news – it is the shared experience of every British parent who has had a child through surrogacy in India, and something we deal with on a daily basis.
A surrogacy industry has grown rapidly in India over the past few years, attracting Western intended parents with limited surrogacy options at home. Although the Indian parliament is considering introducing Indian surrogacy laws (one feature of the proposed Bill being to restrict surrogacy for foreign parents), there is widespread doubt about when or if these laws will ever be passed. With no law to regulate Indian surrogacy as things stand, a profitable surrogacy market has sprung up. Clinics rely on Indian contract law to draw up binding agreements between surrogates and intended parents, and registrars facilitate naming intended parents on Indian birth certificates. All together, it adds up to an affordable but unregulated way of having a child for infertile and gay couples.
But Indian surrogacy is not as simple as it seems for British intended parents. UK law says that the surrogate is the mother of the child and, if she is married, her husband is the father, and these rules apply no matter where in the world the child is conceived. In practice this means that getting named on an Indian birth certificate is false comfort, since the Indian birth certificate will not be recognised for any UK legal purposes.
Getting home is just the first hurdle. Most children born to British parents through surrogacy in India are born ‘stateless’ – they have no nationality anywhere in the world – because of the mismatched laws on parenthood. British parents have to apply to the Home Office for their child to be registered as a British citizen on a discretionary basis. Since the process takes many months, parents must routinely be prepared for a long stay in a foreign country with their newborn child.
....Read more of this article
Article: 7th June by Natalie Gamble Associates
Sunday, 3 June 2012
Surrogacy in India - what's the law for parents from the UK?
Following prominent Indian surrogacy stories in the Telegraph and Evening Standard, Natalie was interviewed on BBC Radio this afternoon to explain the law.
In the absence of regulation, a commercial surrogacy industry in India has boomed over the last few years, with many Indian fertility clinics now offering surrogacy packages to foreign intended parents at a cost of around £20,000. Indian law allows intended parents to enter into a binding contract with a surrogate mother, and Indian officials register the intended parents on the Indian birth certificate.
But the law is not as simple as it seems if you are a British parent. For UK legal purposes, the parents of a child born through surrogacy are the surrogate mother and, if she is married, her husband. Regardless of what the Indian birth certificate says, you will not be recognised as parents and this means that your child may well be born ’stateless’ without any right to a passport anywhere in the world. You will also have no status as the parents of your child when you come back to the UK.
There are solutions – a discretionary application to the British High Commission to give a British passport, and an application to the family court for a parental order which ultimately gives a British birth certificate. However, it is important to be well prepared, and to be very careful about the ethics and safety of what you are doing, given the lack of regulation in India.
Despite the sudden media coverage, none of these issues are new. In a landmark case Re X and Y in 2008, the High Court warned of the dangers of international surrogacy after twins born through a Ukrainian surrogacy arrangement were born ‘marooned stateless and parentless’ by the conflict between UK and Ukrainian law. This was the very first UK case to ratify a foreign surrogacy arrangement, and it has been followed by many others over the past four years. Exactly the same issues apply in Indian surrogacy cases, of which we have dealt with many. No parental orders have yet been refused, although the court does look at every situation carefully to ensure there is no exploitation and to protect the welfare of the child.
You can find out more from our website about international surrogacy law
Saturday, 17 December 2011
UK High Court Judge endorses International Surrogacy
Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India. The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.
The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy: that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’. Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.
In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple. A total of some £27,000 was paid to the Indian clinic. The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.
The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.
Article: 13th December 2011 www.nataliegambleassociates.co.uk
The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy: that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’. Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.
In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple. A total of some £27,000 was paid to the Indian clinic. The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.
The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.
Article: 13th December 2011 www.nataliegambleassociates.co.uk
Monday, 22 August 2011
Canadian couple fights to bring their son back from India following surrogacy mix up
A single piece of paper held the key to their lives, their future, and now it was being questioned.
As the couple and their two children lined up to clear immigration at the New Delhi airport last Saturday, they handed their documents to the officer — Canadian passports for themselves and their daughter, an entry visa for their son.
The next few hours were a blur as immigration officers examined the paper while others bombarded the couple with questions. Why didn’t the boy have a passport? Why just an entry visa? Who was he? Who, indeed.
Their story began in 2005 when they travelled to India to hire a surrogate after years of unsuccessful fertility treatments. The eggs were donated by an unknown woman and fertilized by the man’s sperm. Soon, the surrogate was pregnant with twins. In March 2006, the babies, a boy and a girl, were born.
The couple went to the Canadian High Commission in New Delhi to apply for Canadian citizenship for the twins to bring them home. DNA tests were requested. To the couple’s horror, the boy was found to be genetically unrelated, suggesting a mix-up at the Indian fertility lab. They faced the choice of returning to Canada with their daughter and leaving their son behind, or remaining in India.
At the airport, they were finally cleared. As they settled in their seats and the plane took off for Toronto, the couple shed some tears, laughed a bit. “We dreamed of this day every day but never thought it would happen,” the man says. On Sunday, the family of four arrived at Pearson airport. They were finally home.
The couple’s misadventure in the uncharted territory of commercial surrogacy, unmatched DNA and lost children is gut-wrenching but not unique. Canada’s Assisted Human Reproduction Act makes it illegal to pay sperm donors, egg donors or surrogates.
When the act was passed in 2004, experts worried it would force Canadians to travel abroad to pay for those services, resulting in complications — like the one the Toronto couple became caught in. If a child born through surrogacy has a genetic link to one Canadian parent, Citizenship and Immigration Canada (CIC) grants citizenship. If a genetic link cannot be confirmed, the child is not automatically a Canadian citizen. There is no policy to address a situation where an error has occurred.
Sherry Levitan, a Toronto lawyer specializing in fertility law for the past 20 years, says she has heard heartbreaking stories. “Reproduction tourism is very hot,” she says. “If Canadian couples are going abroad, what are the Canadian requirements to bring babies back . . . Should there be a policy change?” Candice Malcolm, a CIC spokeswoman, says she doesn’t foresee any change to the policy. Meanwhile, families continue to pay a heavy price.
In April 2010, the Star wrote about another Canadian couple, both doctors, who travelled to western India in search of a surrogate. She bore them twins. When the couple went to the Canadian High Commission in New Delhi for travel documents, DNA tests showed both babies were unrelated to either the couple or the birth mother. They were the product of fertilized eggs from an unknown couple. The doctors left India devastated. The twins most likely went to an orphanage. Stories like these are not uncommon from India, where about 350 fertility clinics flourish.
To read more go to http://bit.ly/rcZZ0A
As the couple and their two children lined up to clear immigration at the New Delhi airport last Saturday, they handed their documents to the officer — Canadian passports for themselves and their daughter, an entry visa for their son.
The next few hours were a blur as immigration officers examined the paper while others bombarded the couple with questions. Why didn’t the boy have a passport? Why just an entry visa? Who was he? Who, indeed.
Their story began in 2005 when they travelled to India to hire a surrogate after years of unsuccessful fertility treatments. The eggs were donated by an unknown woman and fertilized by the man’s sperm. Soon, the surrogate was pregnant with twins. In March 2006, the babies, a boy and a girl, were born.
The couple went to the Canadian High Commission in New Delhi to apply for Canadian citizenship for the twins to bring them home. DNA tests were requested. To the couple’s horror, the boy was found to be genetically unrelated, suggesting a mix-up at the Indian fertility lab. They faced the choice of returning to Canada with their daughter and leaving their son behind, or remaining in India.
At the airport, they were finally cleared. As they settled in their seats and the plane took off for Toronto, the couple shed some tears, laughed a bit. “We dreamed of this day every day but never thought it would happen,” the man says. On Sunday, the family of four arrived at Pearson airport. They were finally home.
The couple’s misadventure in the uncharted territory of commercial surrogacy, unmatched DNA and lost children is gut-wrenching but not unique. Canada’s Assisted Human Reproduction Act makes it illegal to pay sperm donors, egg donors or surrogates.
When the act was passed in 2004, experts worried it would force Canadians to travel abroad to pay for those services, resulting in complications — like the one the Toronto couple became caught in. If a child born through surrogacy has a genetic link to one Canadian parent, Citizenship and Immigration Canada (CIC) grants citizenship. If a genetic link cannot be confirmed, the child is not automatically a Canadian citizen. There is no policy to address a situation where an error has occurred.
Sherry Levitan, a Toronto lawyer specializing in fertility law for the past 20 years, says she has heard heartbreaking stories. “Reproduction tourism is very hot,” she says. “If Canadian couples are going abroad, what are the Canadian requirements to bring babies back . . . Should there be a policy change?” Candice Malcolm, a CIC spokeswoman, says she doesn’t foresee any change to the policy. Meanwhile, families continue to pay a heavy price.
In April 2010, the Star wrote about another Canadian couple, both doctors, who travelled to western India in search of a surrogate. She bore them twins. When the couple went to the Canadian High Commission in New Delhi for travel documents, DNA tests showed both babies were unrelated to either the couple or the birth mother. They were the product of fertilized eggs from an unknown couple. The doctors left India devastated. The twins most likely went to an orphanage. Stories like these are not uncommon from India, where about 350 fertility clinics flourish.
To read more go to http://bit.ly/rcZZ0A
Wednesday, 13 July 2011
Surrogacy: court awards parenthood to deceased father
The High Court has made an unprecedented order awarding parenthood to a deceased father of a baby boy born through surrogacy in India. A couple, known only as Mr and Mrs A, entered into a surrogacy arrangement and their son was born in India on 12 April 2010. But Mr A tragically contracted liver cancer during the course of the proceedings and died, leaving the High Court to make a landmark decision to award parenthood to the mother and her deceased husband.
The case was complicated by the fact that only couples – and not single people – can apply for parental orders. When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements. Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.
Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are. Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy? This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.
Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say: “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements. The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant. We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”
The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.
The case was complicated by the fact that only couples – and not single people – can apply for parental orders. When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements. Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.
Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are. Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy? This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.
Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say: “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements. The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant. We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”
The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.
Surrogacy: court awards parenthood to deceased father
The High Court has made an unprecedented order awarding parenthood to a deceased father of a baby boy born through surrogacy in India. A couple, known only as Mr and Mrs A, entered into a surrogacy arrangement and their son was born in India on 12 April 2010. But Mr A tragically contracted liver cancer during the course of the proceedings and died, leaving the High Court to make a landmark decision to award parenthood to the mother and her deceased husband.
The case was complicated by the fact that only couples – and not single people – can apply for parental orders. When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements. Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.
Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are. Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy? This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.
Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say: “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements. The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant. We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”
The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.
The case was complicated by the fact that only couples – and not single people – can apply for parental orders. When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements. Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.
Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are. Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy? This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.
Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say: “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements. The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant. We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”
The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.
Saturday, 26 February 2011
Gay fathers fear following India's surrogacy ban
Gay father Barrie Drewitt Barlow revealed how six gay couples are in a "huge panic" over India's recent ban of surrogacy to gay couples.
Mr Drewitt Barlow, who runs the British Surrogacy Centre with his partner Tony have said “embryos had been transferred to women acting as surrogate, but the men fear they will never see their children”.
The Essex father-of-five, whose children were conceived through US surrogate mothers, warned all Britons against using surrogacy in India. He claimed pimps in India are forcing prostitutes into surrogacy, and families sell their daughters into the service.
"We think ethically it's not the place to carry out surrogacy because women are being exploited," he said. "Most couples go there because it's a cheap option. We discovered the squalor some of these surrogate mothers were living in, it was disgraceful.”
"I've heard of two virgins, both 19, sold by their parents. These girls have recently given birth for two German couples. Both are now pregnant again.”
"I've had at least five emails today from clinics in Mumbai and Hyderabad wanting me to send them English couples who need surrogates. Remember, surrogacy in India is very big business."
To read more go to http://bit.ly/hdZjan
Mr Drewitt Barlow, who runs the British Surrogacy Centre with his partner Tony have said “embryos had been transferred to women acting as surrogate, but the men fear they will never see their children”.
The Essex father-of-five, whose children were conceived through US surrogate mothers, warned all Britons against using surrogacy in India. He claimed pimps in India are forcing prostitutes into surrogacy, and families sell their daughters into the service.
"We think ethically it's not the place to carry out surrogacy because women are being exploited," he said. "Most couples go there because it's a cheap option. We discovered the squalor some of these surrogate mothers were living in, it was disgraceful.”
"I've heard of two virgins, both 19, sold by their parents. These girls have recently given birth for two German couples. Both are now pregnant again.”
"I've had at least five emails today from clinics in Mumbai and Hyderabad wanting me to send them English couples who need surrogates. Remember, surrogacy in India is very big business."
To read more go to http://bit.ly/hdZjan
Friday, 25 February 2011
India to ban gay couples from surrogacy arrangements
India is to ban gay couples from using surrogate mothers. As part of reforms to the country’s surrogacy and fertility treatment laws, only heterosexual couples will be allowed to have children by surrogate.
The Assisted Reproductive Technologies (ART) Regulation Bill 2010 was sent to the law ministry for approval this week. There is apparently nothing in the bill to stop a single gay man from having a surrogate baby, as single men and women will be eligible.
Married and unmarried straight couples who live together will also be permitted to use surrogate mothers. However, women must be able to prove that they cannot have a baby naturally. According to the Evening Standard, a senior Indian official said: “We have to look after the interests of our own citizens as well as handle the tricky matter of the sensitivities of these couples who have not been able to have children in the normal way.
“But above all, we have acted to put some kind of hold on the whole surrogacy issue by banning homosexual couples from coming to India to enter into such deals. India is one of the top destinations for gay and straight couples seeking a surrogate child as it is far more cost-effective than other countries.
In the UK, single people cannot gain full legal rights over their children born by surrogate mother – a problem which affects gay single men in particular. Parental orders are used to extinguish the rights of a biological mother and her husband or partner. However, these can only be granted to couples.
India’s emergence as a surrogacy hotspot has prompted authorities to clamp down on unscrupulous practices, such as the persuading of impoverished women to rent out their wombs. This month, media attention focused on a Spanish gay couple who had twin girls born to a surrogate mother.
The Delhi Commission for Protection of Child Rights ordered the clinic involved to explain its procedures and suggested that the transaction had not been legal. Chariman of the commission Amod Kanth said: “As the Indian laws are yet to approve of a gay marital relationship, the commission shows its grave concern over the issue as to whether the gay foreigner couple have the legal status to assign such surrogacy or having the legal status of adopting parents or otherwise.”
To read more go to http://bit.ly/fqpQFH
The Assisted Reproductive Technologies (ART) Regulation Bill 2010 was sent to the law ministry for approval this week. There is apparently nothing in the bill to stop a single gay man from having a surrogate baby, as single men and women will be eligible.
Married and unmarried straight couples who live together will also be permitted to use surrogate mothers. However, women must be able to prove that they cannot have a baby naturally. According to the Evening Standard, a senior Indian official said: “We have to look after the interests of our own citizens as well as handle the tricky matter of the sensitivities of these couples who have not been able to have children in the normal way.
“But above all, we have acted to put some kind of hold on the whole surrogacy issue by banning homosexual couples from coming to India to enter into such deals. India is one of the top destinations for gay and straight couples seeking a surrogate child as it is far more cost-effective than other countries.
In the UK, single people cannot gain full legal rights over their children born by surrogate mother – a problem which affects gay single men in particular. Parental orders are used to extinguish the rights of a biological mother and her husband or partner. However, these can only be granted to couples.
India’s emergence as a surrogacy hotspot has prompted authorities to clamp down on unscrupulous practices, such as the persuading of impoverished women to rent out their wombs. This month, media attention focused on a Spanish gay couple who had twin girls born to a surrogate mother.
The Delhi Commission for Protection of Child Rights ordered the clinic involved to explain its procedures and suggested that the transaction had not been legal. Chariman of the commission Amod Kanth said: “As the Indian laws are yet to approve of a gay marital relationship, the commission shows its grave concern over the issue as to whether the gay foreigner couple have the legal status to assign such surrogacy or having the legal status of adopting parents or otherwise.”
To read more go to http://bit.ly/fqpQFH
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