Protecting the voiceless: rights of the child in transnational surrogacy agreements.

• Author: Boyce, Anika Keys

1. Introduction

   Only seconds old, a newborn screams in an Indian hospital. Nurses hurriedly wrap her up in blankets and check all her vitals to ensure she is healthy. While she cries, the doctor checks on the woman who just gave birth to a healthy baby girl, a long nine months in the making. But the woman is not her mother--and the baby's genetic parents are hand-in-hand out in the hallway desperately waiting to see their daughter for the first time. After years of bitter disappointment, the baby's infertile western parents contracted to have her brought into this world via an Indian surrogate. Although the newborn girl has just been born, her status and security are already in peril. Whether she will be granted her fundamental right to citizenship so her parents may procure the necessary travel documents to take her home with them is in legal limbo.

   This story is all too familiar for many people who want a child when they are incapable of producing their own. (1) For this couple, the coming months and years may involve a desperate legal battle in which the genetic parents fight courts and government agencies to secure their newborn's rights to citizenship, birth certificate and legal recognition of themselves as the baby's parents. (2) Although the baby they are fighting for is genetically theirs, he or she was brought into this world by extraordinary means and while India and others supply this advanced technology for infertile adults, many countries do not recognize surrogacy as a legitimate means of reproduction. (3) Therefore, while the parents fight their home country's policies and laws and their case slowly moves up the court's docket, the baby is stateless. (4) The resulting baby is the one party who had no decision making power in the surrogacy arrangement and remains voiceless throughout the legal proceedings that will dictate his or her fate. (5) This article focuses on the most vulnerable party in today's burgeoning transnational commercial surrogacy market: the child.

2. DEFINITIONS

   1) Genetic Mother. A woman who contributes her egg in order to produce the child. (6)

   2) Genetic Father. A man who contributes his sperm in order to produce the child. (7)

   3) Intended Parents: Individuals who intend to become the legal parents of the child produced as a result of a surrogacy agreement. (8)

   4) Surrogate/Surrogate Mother. A woman who agrees to carry another's fetus in her uterus to term and gives birth. (9)

   5) Altruistic Surrogacy. An arrangement in which the surrogate mother is reimbursed for her reasonable medical expenses while pregnant and nothing more. (10)

   5) Commercial Surrogacy. A commercial arrangement in which the surrogate is reimbursed for her reasonable medical expenses while pregnant and compensated for her surrogacy services. (11)

3. OVERVIEW OF INTERNATIONAL SURROGACY LAWS AND POLICES

   The problem of stateless children may occur when intended parents travel to a foreign country, such as India, to enter into a surrogacy arrangement. (12) After the resulting child is born and the intended parents seek to return to their home country with their newborn, the home country may refuse to issue a passport for the child or recognize the intended parents as the child's legal parents. (13) At the same time, the child may be denied citizenship in the country where the surrogacy took place because that country may consider the intended parents to be the child's legal parents, and thus the child is not entitled to acquire the domestic citizenship of the foreign country. (14) Home countries that refuse to issue the necessary travel documents or recognize the intended parents as the legal parents of surrogate children typically do so because they maintain the traditional view of legal parentage in which the "legal mother" is the child's birth mother, and if the birth mother is married, the law presumes her husband to be the legal father. (15) Other countries may permit altruistic surrogacy but prohibit commercial surrogacy as a matter of public policy. (16) In such situations, the intended parents are forced to battle their home country's government and regulatory agencies to establish that their child is biologically related to them and therefore entitled to domestic citizenship. (17)

   1. Laws and Policies of Countries

      Many countries explicitly ban the practice of surrogacy. (18) For example, Switzerland, Italy, and Norway implemented legislation banning surrogacy as a legitimate form of reproduction. (19) Additionally, France and Germany prohibit surrogacy because their courts have held that surrogacy arrangements violate their country's public policy. (20) The main problem facing countries that ban surrogacy outright is that infertile adults from those countries must seek surrogacy elsewhere, and should they wish to return with their resulting child, a legal battle is inevitable. (21)

      Other countries recognize the practice of surrogacy but it is heavily regulated. (22) For example, Israel and the United Kingdom recognize altruistic surrogacy but explicitly ban commercial surrogacy. (23) As a result, many citizens from these countries travel to countries such as India and the Ukraine where commercial surrogacy is readily available at a low cost. (24) However, when those intended parents seek to return to their homes in the UK or Israel after engaging in a commercial surrogacy arrangement, those countries may refuse to recognize the commercial surrogacy arrangement as valid because it violates their public policy. (25)

      Because the United States generally leaves family law issues to the states, the United States encompasses a wide variety of laws and policies concerning surrogacy with some states explicitly banning surrogacy while others permitting but regulating the practice. (26) For example, California permits commercial surrogacy for heterosexual and homosexual intended parents; on the other hand, Michigan not only bans surrogacy but imposes criminal sanctions on those who enter surrogacy arrangements. (27)

      1. India

      Due to the confusing or outright prohibitory nature of various countries' policies and laws regarding surrogacy, many adults who desire to become surrogate parents travel to countries such as India where they know surrogacy is generally safe and legal. (28) Despite the fact that India lacks any specific laws legalizing or regulating surrogacy, it has become a popular destination for infertile couples seeking surrogacy as the means to have their child. (29) Indian Assisted Reproductive Technology ("ART") clinics were started with the dual purpose of creating an easier and cheaper method, by which infertile couples could become parents while simultaneously providing advanced technological and medical facilities. (30) For example, in the United States the total cost of a surrogacy arrangement can range from $80,000 to over $100,000. (31) In India, on the other hand, a surrogate mother is typically paid between $2,500 and $7,000 and, including medical costs, the total cost is generally around $12,000.32 Due to its low-cost medical procedures, Indian commercial surrogacy has become an extremely attractive industry for intended parents around the world, currently worth an estimated $2.3-2.5 billion. (33)

      Due to complex social, ethical, legal, and medical concerns presented by surrogacy, there have been widespread calls for better regulation of the commercial surrogacy industry in India. (34) In 2005, the Indian Council for Medical Research ("ICMR") and the National Academy of Medical Science released the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics ("Guidelines"), which are non-binding guidelines for all clinics providing ART services in India. (35) The Guidelines provide, inter alia, that: (1) the surrogate mother must register as a patient in her own name and provide information about her role as a surrogate and the genetic/intended parents; (2) the birth certificate shall be in the name of the genetic or intended parents; (3) the intended parents must provide for medical expenses during the pregnancy, including monetary compensation entitled to the surrogate for her services, which is to be decided by the parties; and (4) the intended parents must give informed consent witnessed by a non-member of the clinic. (36) While the Guidelines were a commendable first step, they were widely criticized due to their non-binding nature and their failure to emphasize human rights protections for the surrogate and child. (37)

      In 2010, the Indian Council of Medical Research released the Assisted Reproductive Technologies Bill of 2010 ("ART Draft Bill of 2010") which, like an earlier draft in 2008, has yet to become law. (38) Unlike the Guidelines, the ART Draft Bill of 2010 would be legally binding on all clinics and parties involved in surrogacy arrangements and would therefore enable greater oversight of the privately operated industry. (39) The bill's preamble warns of possible unethical practices within the ART industry, and states that in order to protect and serve the public interest, legislation must regulate the industry, ensuring "the medical, social, and legal rights of all those concerned are protected." (40) One important provision would establish a National Advisory Board, which would be responsible for regulating permissible ART practices, encouraging and promoting ART training and research, providing guidelines for patients, and disseminating the necessary information regarding ART to the public. (41) Additionally, the ART Draft Bill of 2010 outlines the duties of ART clinics to ensure that all patients and donors are healthy and that all parties are given the necessary information in order to provide their true informed consent. (42) Regarding the resulting child, the ART Draft Bill of 2010 states that the surrogate must relinquish all parental rights to the intended parents and that the resulting child's birth certificate is to bear the...