Archive for July, 2012

Indian surrogacy: draft law finalised to bring in regulation

Tuesday, July 17th, 2012

For the first time, The Indian Government has finalised draft legislation to regulate the rapidly expanding Indian surrogacy sector.  At present, there are no surrogacy laws in India and surrogacy is neither legal nor illegal.  It is understood that the Indian Government is moving quickly to introduce legal regulation and The Assisted Reproductive Technology Regulation (ART) Bill is due to come before the Winter Session of the Indian Government.

There are currently believed to be around one thousand fertility clinics in India, although the actual number is unclear as there is no official supervisory body.  It is estimated that there were approximately two thousand surrogate births in India last year, with around half of these believed to have been born to British intended parents.  Indian authorities now believe the Indian surrogacy sector is worth as much as £1.5 billion each year and that it continues to grow rapidly and needs regulation.

The Bill seeks to ban foreign intended parents from entering into a surrogacy arrangement in India if surrogacy in prohibited in their homeland (which will catch many European nationals).  It also requires foreign intended parents to provide an undertaking that their surrogate born child will be entitled to foreign citizenship from their home country.  This is designed to stop the birth of surrogate born children in India who are stateless (since they are not currently recognized as Indian citizens) and who cannot then navigate a safe legal path home with their intended parents.

The Bill also requires foreign intended parents to retain a local guardian to support the surrogate in their absence.  If the intended parents do not assume care of the child after the birth, the child will then be granted Indian citizenship and the guardian will then be able to arrange his/her adoption in India.  This is designed to stop cases where surrogate born children have been born legally parentless in India due to an international conflict of law and intended parents have either struggled to get home safely with their child or they abandoned the child altogether.

The Bill also restricts surrogate mothers to those aged 21 to 35 years, with a cap of five successful live births in her lifetime including the births of her own children. Overall, the Bill’s aim is to support the rights of surrogate born children, surrogate mothers and intended parents and bring about legal regulation with criminal sanctions for those who breach the law. This demonstrates once again that surrogacy law and practice remains a fast moving area and this is something to watch in the months ahead as we wait to see what the end result will be.

If you would like more information about the legal issues associated with an international surrogacy arrangement or you would like to discuss your situation in more detail please email me louisa.ghevaert@michelmores.com.

Surrogacy ban to hit Queensland: a worrying step backwards

Friday, July 6th, 2012

The Queensland government has announced that it plans to change surrogacy law to prevent single people, gay couples and straight couples who have lived together for less than two years from undergoing surrogacy. Existing altruistic surrogacy legislation was only passed in February 2010, de-criminalising altruistic surrogacy although commercial surrogacy remains a crime.

The Queensland Premier Campbell Newman said shortly before his election in March that his party would not make any changes to surrogacy law.  He has subsequently said this was a mistake and that they intend to change the law and restrict surrogacy to longstanding heterosexual couples only.  These proposed changes will effectively criminalise altruistic surrogacy arrangements for single people, gay couples and heterosexual couples who have lived together for less than two years and they will face a prison sentence of up to three years if they have a child through surrogacy.

These proposed changes represent a significant government u-turn and a worrying step backwards in terms of the rights of single people and gay and straight couples to access surrogacy.  These proposed changes will create additional worry and heartache for many prospective parents, who will either seek to keep ‘below the radar’ with their family building plans or move to a state with less restrictive and discriminatory laws. Interest in surrogacy continues to grow around the world.  Growing numbers of intended parents are already crossing borders to access surrogacy in the face of restrictive laws at home and these numbers look set to increase in light of these proposed changes to the law in Queensland.

Surrogacy arrangements, particularly those with an international element, can raise complex legal issues and international conflicts of law. If you would like to discuss your situation in more detail or you would like more information about the legal issues associated with international surrogacy please email me louisa.ghevaert@michelmores.com.