Professional Documents
Culture Documents
Surrogacy Chapter 5
Surrogacy Chapter 5
Chapter – V
Comparative Global Trends
1
The Surrogacy Arrangements Act, 1985, c. 49, § 2, states that “no person shall on a commercial basis,”
among other things, “initiate or take part in any negotiations with a view to the making of a surrogacy
arrangement,” but that it is not illegal “for a woman, with a view to becoming a surrogate mother herself,” to
do any of the actions prohibited to be done on a commercial basis.
2
The relevant pieces of legislation are § 2 of the Surrogacy Arrangements Act and the Human Fertilization
and Embryology Act, 1990, c. 37, §§ 30, 36(1). The latter section renders surrogate motherhood contracts
unenforceable.
3
Human Fertilization and Embryology Act § 30(1) (declaring that “the court may make an order providing
for a child to be treated in law as the child of the parties to a marriage” if the surrogate mother was
artificially inseminated with either (1) the biological mother’s eggs or (2) both biological parents’ genetic
material).
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In the United Kingdom, one of the few countries in Europe that allows surrogacy,
there was a great deal of controversy following the birth of a child in 1985 in a partial
surrogacy arrangement and legislation called “Surrogacy Arrangements Act, 1985”, was
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rapidly passed to limit but not ban the practice, Under this law, commercial surrogacy
arrangements were made illegal.4 After a great deal of discussion, the British Medical
Association agreed that it would not be possible or desirable to seek to prevent the
involvement of doctors in surrogacy arrangements, especially as the government does not
intend to make the practice illegal. This report set out guidelines for doctors intending to
treat patients by gestational surrogacy and made it clear that it should only be carried out
for exceptional reasons and after intensive investigation and counseling.5
A couple can apply to the court for a pre-birth order that will name the couple as
the legal parents of any children born to the surrogate.6
It is a requirement of the United Kingdom’s Human Fertilization and Embryology
Act, 1990 that the welfare of any child born as a result of surrogacy treatment and the
welfare of any existing children must at all times be taken into account when considering
such treatment.7 This guides all the couples undertaking treatment through surrogacy in
the United Kingdom.
However, the Catholic Church is strongly against all forms of assisted conception,
particularly those associated with gamete donation and surrogacy. It treats it all as gravely
immoral and unacceptable. The clergies of the Church opine that these techniques infringe
the child’s right to be born of a father and mother known to him and bound to each other
by marriage. They betray the spouses’ right to become a father and a mother only through
each other. The Anglican Church, on the other hand, is less rigid in its views and has not
condemned the practice of surrogacy. Surrogacy is not forbidden in the Jewish religion,
which is very much family orientated and which lays a duty on Jews to have children. In
the Jewish religion the child born as a result of surrogacy will belong to the father who
gave the sperm and to the woman who gave birth.8
4
See Section 2 (1), Surrogacy Arrangements Act, 1985.
5
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, 2003, Vol. 9, No.5, pp.483-491.
6
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005) at 635.
7
See Section 34 (2) (b), Human Fertilization and Embryology Act, 1990.
8
Catechism of the Catholic Church, Part Three: Life in Christ, Section Two: The Ten Commandments,
Chapter Two: ‘You Shall Love Your Neighbor As Yourself’, Article 6: The Sixth Commandment, Verse:
2376.
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First of all it is to be noted that the Surrogacy Arrangement Act, 1985 has been
amended by the Human Fertilization and Embryology Act, 1990. This Act of 1985 sought
to outlaw profit making agencies from assisting in the creation of surrogacy arrangements.
The Act makes it illegal and guilty of an offence if the activity of surrogacy is done on
commercial basis through payments9, wherein the payment is received by the person
himself or another person.10 But no criminal offence is committed by either the surrogate
mother or the commissioning couple if, it is agreed between them that payments will be
made to the surrogate mother, because this payment to the surrogate mother will be treated
as compensation for the services she provides to the infertile couple. However, any other
person, company or agency that negotiates, makes or otherwise assists for payment in a
surrogacy arrangement commits the said offence.11 It is also a criminal offence in the
United Kingdom to carry advertisements about surrogacy in any newspaper etc. and to
distribute such advertisements.12
The provisions of Human Fertilization and Embryology Act, 2008 have been
enforced which has made amendments to the Human Fertilization and Embryology Act,
1990 and to the Surrogacy Arrangements Act, 1985. Under this Act of 2008, a non-profit
making body will be allowed to make a not for profit charge for facilitating surrogacy
arrangements and compiling information, and they will be allowed to advertise those
services for which they make a charge.13 With the enforcement of this Act, unmarried and
same sex couples will be able to apply for parental orders.14
It is vital to remember that no matter what the genetic make-up of the child is, the
laws in United Kingdom sees the woman who carries and bears the child as the legal
mother. If she was married at the time of artificial insemination or the implantation of an
embryo, the law in United Kingdom recognizes her husband as the legal father of the
9
See Section 2 (3), (5), Surrogacy Arrangements Act, 1985.
10
See Section 2 (3), (5) of the Surrogacy Arrangement Act, 1985.
11
Section 2 (1) of the Surrogacy Arrangement Act, 1985.
12
Section 3 of the Surrogacy Arrangement Act, 1985.
13
See Human Fertilization and Embryology Act, 2008
14
See Section 54, Human Fertilization and Embryology Act, 1990.
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child, unless it is shown that he did not consent to the implantation of the embryo or the
artificial insemination.15
Thus, under the laws in United Kingdom, the parental responsibility for the child
rests with the surrogate mother and, if she is married, with her husband unless it is shown
that the husband did not consent. This presumption may be rebutted by evidence that the
commissioning man is the genetic father. As the surrogate mother is recognized as the
legal mother, Section 30 of the Human Fertilization and Embryology Act, 1990 provides a
procedure by which the commissioning couple can acquire parental rights. The surrogate
mother and the legal father must give full and free consent for the parental order. Such
consent is not effective until the child is atleast six weeks old.16
There are also other limits contained in Section 30 in relation to obtaining parental
orders. These limits are as follows:
a) The child is genetically related to atleast one of the commissioning couple;
b) The surrogate mother has consented to the making of parental order (not earlier
than six weeks after the birth of the child);
c) The commissioning couple are married to each other and are both aged 18 years or
above;
d) The commissioning couple have made the application within 6 months of the birth
of the child;
e) No money other than reasonably incurred expenses has been paid in respect of the
surrogacy arrangement unless authorized by the court;
f) The child is living with the commissioning couple; and
g) The commissioning couple is domiciled in the United Kingdom.
In other words, if all the conditions mentioned above are fulfilled, Section 30
enables the court to order that the commissioning couple in a surrogate arrangement is to
be treated in law as the parents without their having to adopt the child.
Section 36 of Human Fertilization and Embryology Act, 1990 has introduced
Section 1 A into the Surrogacy Arrangement Act, 1985 which provides that no surrogacy
arrangement is enforceable by or against any of the persons making it. Thus, surrogacy
contracts are unenforceable in the courts in United Kingdom. This means that the
15
See Section 28, Human Fertilization and Embryology Act, 1990.
16
See Section 30 (6) of Human Fertilization and Embryology Act, 1990.
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The first ever report of a baby being born following treatment by gestational
surrogacy was from the USA in 1985. The largest experience of both partial and
gestational surrogacy is in the USA, where commercial surrogacy arrangements are
allowed. In the USA, highly professional commercial agencies exist, often run by lawyers,
which put couples in touch with women who are willing to act as surrogate hosts. The
commissioning couple and a host, whom they would like to act for them, are brought to
the clinic for further in-depth discussions. Full details of the treatment are explained to the
proposed host, provided that she is considered to be emotionally and physically in a
condition to act in this capacity. The couples are then asked to seek an independent
counselor, who provides in-depth counseling on all aspects of surrogacy.
In the UK and USA, couples are advised to consult lawyers who can specially
advise on the potential legal problems associated with surrogacy. When the legal and
counseling processes have been completed satisfactorily and if there are no obvious
reasons why the arrangement should not proceed, a combined medical and counseling
report is prepared and the arrangement is discussed anonymously with the independent
Ethics Committee to the Clinic. After a full review, the surrogacy arrangement may be
approved, held over pending further information and discussion, or rejected. In every
17
This will depend upon the terms of the contract between the parties.
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surrogacy arrangement, the Clinic has to follow the recommendations of the Ethics
Committee.18
Thus, laws on surrogacy in the USA are very complicated as different states have
different laws. The laws of few important States of USA have been discussed hereunder: -
California is one of the notable States in the USA as it has a ‘surrogacy friendly
jurisdiction’. In 1973, the Uniform Law Commissioners promulgated the Uniform
Parentage Act. It led to a revolution in the law of determination of parentage, paternity
actions and child support. A child whose mother was not married was an illegitimate child
under the common law. The father of an illegitimate child was burdened neither with
rights nor obligations. He could be subject to an action for limited damages (the costs of
delivering the baby) in an action that was quasi-criminal, not a civil action. The child had
no right of support, but then the unmarried father also had no right to custody of the child.
The US Supreme Court eliminated illegitimacy as a legal barrier in a number of
cases in the 1960’s and 70’s. The old-fashioned paternity actions simply did not respond
to these changes in fundamental law. The Uniform Parentage Act, 1973 was law for a new
generation. Section 2 of the Uniform Parentage Act, 1973 provides that the parent and
child relationship extends equally to every child and every parent, regardless of the marital
status of the parent.
In 1988, the Uniform Law Commissioners promulgated two other acts that deal
with issues of parentage. The Uniform Status of Children of Assisted Conception Act,
1988 provided rules establishing legal parentage for children conceived other than by
sexual intercourse and possibly carried by a woman other than the legal mother. It was a
response to the technologies of assisted conception, like in vitro fertilization and artificial
insemination. The second was the Uniform Putative and Unknown Fathers Act, 1988. It is
a procedural act that allows the identification of putative and unknown fathers and
termination of their parental rights.
In 2000, the National Conference promulgated a modernized version of the
Uniform Parentage Act, which addressed technological changes, especially the
development of DNA identification, and incorporated and replaced the two 1988 Acts
18
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, 2003, Vol. 9, No.5, pp.2-7.
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(Uniform Status of Children of Assisted Conception Act and Uniform Putative and
Unknown Fathers Act). In 2002, further changes to the Uniform Parentage Act were
promulgated, extending the Act to also provide a balanced coverage to questions of
parentage arising in non-marital circumstances. The Uniform Parentage Act, 2000
continues to serve the purposes of the Uniform Parentage Act, 1973, particularly the
purpose of identifying natural fathers so that child support obligations may be ordered.
California heads the way in terms of acceptability of surrogacy agreements and
upholds that Lesbian, Gay, Bisexual and Transgender (LGBT) individuals can also opt for
such a surrogacy arrangement. While the State has no statute directly addressing
surrogacy, California’s courts have used the State’s Uniform Parentage Act, 2000 (as
amended in 2002) to interpret several cases concerning surrogacy agreements.
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Parentage Act, 2000 for that reason. Having such provisions available to the states even in
optional form is important simply because gestational agreements are being used all the
time, and the legal parenthood of children should not be in doubt because such agreements
are used. A gestational agreement occurs between a woman and a married or unmarried
couple obligating that woman to carry a child genetically related to either or both of the
intended parents. The conception must be an assisted conception. The woman who carries
the child to birth pursuant to a gestational agreement is not the legal mother of that child,
an exception to the general rule. The intended parents become the legal parents of the
child. Gestational agreements are carefully controlled under the Uniform Parentage Act,
2000. A court must validate such agreements before they are enforceable, and all parties
to the agreement, including the gestational mother’s spouse (if married), must consent to
its terms. The hearing that the court conducts to validate a gestational agreement is
analogous to a proceeding for an adoption of a child. The court verifies the birth mother’s
qualifications to carry the child and the intended parents’ qualifications to be parents. The
birth mother may be compensated, and has the power to terminate the agreement.
Thus, the provisions of the Uniform Parentage Act, 2000 confronts the
complicated issue of establishing legal parentage against the complications that
technology provides. It brings genetic testing into modern parentage actions in a manner
that is efficient, but that preserves due process rights for all concerned.
On the other hand, the influential cases in California regarding surrogacy rights
have been decided interpreting the Uniform Parentage Act, 2000. For Example, in
Johnson v. Calvert19, the California Supreme Court decided that the intended parents in a
gestational surrogacy agreement (where the surrogate is not the biological contributor of
the egg) should be recognized as the natural and legal parents. The Court further decided
that the person who intended to procreate, i.e., the mother who provided her egg to the
surrogate, should be considered the natural mother. This also follows through to a couple
who uses the services of an Egg Donor.
In the 1994 case of Re Marriage of Moschetta20, a California Court of Appeals
addressed the question of how to determine parentage when a child is conceived via
traditional surrogacy (in which the surrogate mother is the biological contributor of the
19
851 P.2d 776 (1993)
20
(1994) 25 Cal. App. 4th 1218
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egg) and the child was born after the intended parents had separated. The Court held that
the intended father and the surrogate mother were the legal parents of the child, leaving
the intended mother without any parental rights.
In the case of the Marriage of Buzzanca21, Luanne and John had an embryo
genetically unrelated to either of them implanted in a surrogate named Buzzanca. The
couple separated and John disclaimed any parental responsibility for the child. Ultimately,
the Court found that when a married couple intends to procreate using a non-genetically
related embryo implanted into a surrogate, the intended parents are the lawful parents of
the child. When a married couple consents to in-vitro fertilization by unknown donors and
its subsequent implantation into a surrogate, the couple is the legal parents of the
offspring. In 2005, the California Supreme Court decided three companion cases that
concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior
Court22, Kristine H. v. Lisa R. 23 and K.M. v. E.G.24 The Court held that, under the Uniform
Parentage Act, two women can be the legal parents of a child produced through surrogacy.
This ruling presumably applies to all members of the LGBT community.
21
(1998) 61 Cal. App. 4th 1410.
22
117 P.3d 660 (2005)
23
117 P.3d 690 (2005)
24
117 P.3d 673 (2005)
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ensure that the judgment is in place prior to the birth of the child/children to prevent the
surrogate’s name from being listed on the child’s birth certificate.25
Once the Order is obtained, the hospital where the surrogate will be delivering
should be forwarded a copy of the same. Normally this will go to the social work
department. This will highlight to the hospital team that this is a surrogacy arrangement,
and that specialized handling should be put in place to accommodate the needs of the
intended parents and the surrogate and her family. Most hospitals in California are now
very familiar with these arrangements and have a specific protocol in place to ensure the
transition goes smoothly for everyone.
In the US, it is the hospital’s duty to register the birth of any children born at that
hospital. This means that a full-time registrar will be at the hospital that will come along to
the private room within 24 hours of the birth of the baby and the birth registration form is
to be filled out. This form will be signed by both the intended parents, and by the
delivering doctor. Once this has been done, the registrar will forward the paperwork to the
California State Department of Vital records, where the birth certificate will be produced.
This will then be ready for collection within the next two weeks.
In all cases where a surrogate gives birth to a child for another couple or person,
the California Office of Vital Records will only allow the intended parents’ name(s) to go
on the birth certificate, if the certificate is accompanied by a Superior Court judgment
naming the intended parent(s) as the legal parent(s) of the child. Without such a judgment,
the surrogate’s name (and if she is married, her husband's name) must go on the birth
certificate. Because the birth certificate must be registered with the Office of Vital
Records within ten days of the birth, the judgment should be presented to the birth records
department of the hospital at the time of birth. As a practical matter, the judgment should
be obtained no later than twenty weeks into the pregnancy. The reason is that after twenty
weeks Vital Records will require either a certificate of birth or foetal death, both of which
require the parent’s name(s).
Where there is both an intended mother and an intended father, filling out the birth
certificate is straightforward. The hospital where the child is born simply follows the court
judgment and fills out the birth certificate with the intended mother and intended father’s
names in the appropriate boxes. If a single man is the sole parent, however, the box
25
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005) at 635.
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designated, “Mother”, cannot be left blank. This means that the single male parent has two
choices. He can opt to have the surrogate’s name go in the box for, “Mother”, and his
name in the box for, “Father”, or he can elect to have his name go in the box for,
“Mother”, and leave the box for, “Father”, left blank. In both cases, the judgment calls for
the birth certificate to be reissued with the single man’s name in the box for, “Father”, and
the box for, “Mother”, left with a dash (-). The best choice is to have his name go in the
box for, “Mother”, so that the birth certificate is as accurate as possible from the time of
birth. In cases of gay or lesbian couples, the best course of action is to have the court issue
its judgment requiring that both intended parents’ names to go on the birth certificate, one
in the box for, “Father”, and one in the box for, “Mother”.26
26
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005) at 635.
27
New York Code Article 8, Section 122.
28
Section 123 of New York Code: (1) No person or other entity shall knowingly request, accept, receive, pay
or give any fee, compensation or other remuneration, directly or indirectly, in connection with any surrogate
parenting contract, or induce, arrange or otherwise assist in arranging a surrogate parenting contract for a
fee, compensation or other remuneration, except for:
(a) payments in connection with the adoption of a child permitted by subdivision six of section 374
of the social services law and disclosed pursuant to subdivision eight of section 115 of this chapter; or
(b) payments for reasonable and actual medical fees and hospital expenses for artificial
insemination or in vitro fertilization services incurred by the mother in connection with the birth of the child.
(2) (a) A birth mother or her husband, a genetic father and his wife, and, if the genetic mother is not the birth
mother, the genetic mother and her husband who violate this section shall be subject to a civil penalty not to
exceed five hundred dollars.
(b) Any other person or entity who or which induces, arranges or otherwise assists in the formation of a
surrogate parenting contract for fee, compensation or other remuneration or otherwise violates this section
shall be subject to a civil penalty not to exceed ten thousand dollars and forfeiture to the state of any such
fee, compensation or remuneration in accordance with the provisions of subdivision (a) of section 7201 of
the civil practice law and rules, for the first such offence.
Any person or entity who or which induces, arranges or otherwise assists in the formation of a surrogate
parenting contract for a fee, compensation or other remuneration or otherwise violates this section, after
having been once subject to a civil penalty for violating this section, shall be guilty of felony.
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also does not recognize pre-birth orders from other states. Rather, it has provided a post-
birth adoption alternative for altruistic surrogate parents via orders of maternal and
paternal filiation.
The New York Code defines ‘surrogate parenting contracts’ under Section 121 as
agreements in which:
(a) a woman agrees to be either inseminated with the sperm of a man who is not
her husband or to be impregnated with an embryo that is the product of an ovum fertilized
with the sperm of a man who is not her husband; and
(b) the woman agrees to, or intends to, surrender or consent to the adoption of the
child born as a result of the impregnation or insemination.
29
Florida Statute 63.212 (1) (i) and Florida Statute 742.15.
30
157 F.Supp.2d 1372 (2001)
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by a court; and the intended parents do not have to be biologically related to the child.
Recruitment fees for Traditional Surrogates are prohibited.31
In contrast, under a ‘Gestational Surrogacy contract’, the surrogate must agree to
relinquish her rights to the child upon birth; the intended mother must show that she
cannot safely maintain a pregnancy or deliver a child; and at least one of the intended
parents must be genetically related to the child. Both sets of laws require the surrogate
mother to submit to medical evaluation; make the surrogate the default parent if an
intended parent who is expected to be a biological parent turns out not to be related to the
child; limit the types of payment allowed; and require the intended parents to agree to
accept any resulting child, regardless of any impairment the child may have.
31
Section 742.15, Florida Statute.
32
See Texas’s Uniform Parentage Act
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Like the USA, Australia has different regulations in different states. The
Commonwealth does not have constitutional power to legislate on surrogacy hence,
legislative power for this area remains with the States. There is no uniformity of
regulations throughout Australia. Some States have enacted legislations with different
models being used in different jurisdictions, and few States rely solely on the common
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34
Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 61, Infertility Act, 1995
(enacted in Victoria); Section 7, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G,
Family Relationships Act, 1975 (enacted in South Australia); Section 31, Parentage Act, 2004 (enacted in
Australian Capital Territory); Section 45, Assisted Reproductive Technology Act, 2007 (enacted in New
South Wales).
35
But under Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland) altruistic surrogacy is
prohibited. But Section 10 G, Family Relationships Act, 1975 (enacted in South Australia) altruistic
surrogacy is illegal, but no penalty attaches for breach of this provision.
36
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G,
Family Relationships Act, 1975 (enacted in South Australia); Section 41, Parentage Act, 2004 (enacted in
Australian Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New
South Wales).
37
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H,
Family Relationships Act, 1975 (enacted in South Australia); Section 42, Parentage Act, 2004 (enacted in
Australian Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New
South Wales).
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38
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 60, Infertility Act, 1995
(enacted in Victoria); Section 6, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H,
Family Relationships Act, 1975 (enacted in South Australia); Section 43, Parentage Act, 2004 (enacted in
Australian Capital Territory); Section 44, Assisted Reproductive Technology Act, 2007 (enacted in New
South Wales).
39
Section 6, Surrogacy Contracts Act, 1993 (enacted in Tasmania, for both commercial and altruistic
surrogacies); Section 44, Parentage Act, 2004 (enacted in Australian Capital Territory for commercial
surrogacies only).
40
See Parentage Act, 2004 (Australian Capital Territory), part 2, division 2.5.
41
Section 3 (1) Surrogate Parenthood Act, 1988 (Queensland) and Section 5 (1) (b), Penalties and Sentences
Act, 1992 (Queensland).
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Japan has not yet regulated assisted reproductive technology by law. This lack of
rules and regulations leaves the citizens to approach the courts for the solution of
numerous controversies, which puts patients in a situation of considerable uncertainty
about their rights. Japanese obstetricians adopted a ban against surrogate births in 1983,
but there is no binding law and some couples have had children through surrogate mothers
with the help of a doctor in central Japan who is defying domestic medical circles. Such
births, along with a trend for couples to go abroad in search of surrogate mothers in
countries such as India, have prompted the government to consider for framing of rules
and regulations regarding surrogacy. A panel of health, legal and ethics experts at the
Science Council of Japan, have debated the issue at the request of the government argued
that surrogate births pose health risks to both surrogate mothers and children. Japanese
parents, if they seek a surrogate baby, have to keep it secret because of stigma surrounding
surrogacy in Japan.
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The Japanese Prime Minister Shinzo Abe have opined that the issue of surrogacy is
‘very difficult’ and Sanae Takaichi, State Minister for gender, equality and population had
said that ‘the discussion is highly welcome, but it is extremely difficult to judge whether
surrogate birth can be encouraged.’42 Although it appears likely that the public will
support changes to the existing law, it remains to be seen whether the government will
endorse a sympathetic view towards surrogacy. 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.
Supreme Court of Japan has taken a different legal stand in respect of surrogacy. In
its decision dated 23th March, 200743, the Supreme Court of Japan denied parenthood to
genetic parents, since the twin babies were born to a surrogate mother at United States.
Interpreting the Civil Code of Japan, the Supreme Court, held that a mother who
physically gives birth to a child is the legal mother of the child. There is no provision in
the Code to recognize the genetic mother as legal mother. There exists no specific laws in
Japan concerning parent-child relationship for artificial insemination, and the mother-and-
child relationship will be based on the fact of delivery. The Japan Supreme Court rejected
the Japanese commissioning parents’ bid to register their twins born to a US surrogate
mother in Japan, on the ground that the law presumes the woman, who gives birth to a
child, as its mother.
42
http://www.bionews.org.uk/page_12891.asp; last visited on 20/07/2014; time 10:00 am (IST); place
Meerut, Uttar Pradesh, India.
43
Surrogate Birth Child Denied Registration Case, Case No. 47 of 2006, 61 Minshu No.2 (Sup. Ct. 2nd
Petty Bench, 23 March 2007).
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In 1996, the Israeli government legalized gestational surrogacy under the ‘Embryo
Carrying Agreements Act’. This law made 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. A state-appointed Approval Committee permits surrogacy
arrangements to be filed only by adult Israeli citizens who share the same religion.
Surrogates must be single, widowed or divorced and only infertile heterosexual couples
are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law
have prompted some intended parents to turn to surrogates outside of the country.
The question of who can become a parent by surrogacy in Israel is also strictly
regulated. The Embryo Carrying Agreement Act, 1996 allows only heterosexual couples
to enter into an agreement with a surrogate mother. The law states that only a man who
has a female partner, irrespective of marital status, can be an intended father. Likewise, the
law states that only a woman who has a male partner, irrespective marital status, can be an
intended mother. The law also excludes single men or women and same-sex couples. The
designated parents and the surrogate mother must all share the same religion, so the
child’s religious status will be clear. This is consistent with the legal philosophy of family
law in Israel, in which individuals are accorded rights and status on the basis of their
religious and family status, and, for two examples among many, forbids interfaith
marriage and adoptions. The designated parents must meet age requirements, and the
mother has to prove that she is infertile or that pregnancy would significantly damage her
health. After the birth, the designated parents must submit a request to receive legal
parenthood, and upon the court’s confirmation, they will be the child’s sole guardians and
his or her parents in every respect. The surrogate mother can only withdraw from the
agreement and keep the child before legal parenthood is granted to the designated parents,
and only if a social worker appointed by the court attests that the circumstances have
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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015
changed in way that justifies the withdrawal and that the child’s welfare would not be hurt
by the withdrawal. The surrogate mother can be compensated for her services and
expenses, including legal counseling, health insurance, time, pain, loss of earnings and
earning capacity, and any other reasonable expense. Financial arrangements should be a
part of the agreement submitted to the Surrogacy Approval Committee.
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