5.

private international law on dealing with the stateless of the child

Countries that have made a stand for or against the different forms of surrogacy have done so on
different grounds and with varied outcomes, as discussed above in this paper. This has created an
untenable situation in inter-country surrogacy agreements where neither the intending parents nor
the surrogate mothers receive firm guarantees or legal safeguards, but instead face a clash of
national legislation, uncertainty regarding payments, threats of exploitation, and court

proceedings and parental-rights conflicts after birth. Confusion arises over which country or which
parents the child belongs to, making citizenship controversial and parenthood artificial. While the
courts of several countries have taken steps to ensure the safeguarding of vulnerable children in
these cases, more laws and/or regulations need to be enacted at the international level, such as
those suggested by India or applied in Israel. Such laws and regulations would avoid confusion and
legal interjection in ISAs. Banning commercial surrogacy does nothing to help this problem and
creates the dangerous possibility that surrogacy would transfer to the black market, with
unregulated touts offering cut-price deals in back streets. Just like other areas of trade, commercial
surrogacy needs to be controlled by an internationally recognized regulatory framework with
enforceable rules and policies so as to be practically and economically viable. International
regulation of surrogacy is a complicated matter and would require great cooperation and economic
resources to implement. Transnational surrogacy agreements need a regulatory framework that is
independent of the individual countries. In order to protect all parties involved and to equalize the
regulatory disparity across the globe, one idea is to introduce a separate convention under the
Hague Conference on Private International Law (the HCCH)modeled on the existing Hague
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption of 1993
(Hague Conference on Private International Law). The draft convention would ensure that the
contracting nations follow internationally recognized standards, with legal safeguards in the best
interests of the surrogate, the intending parent(s), and the surrogate child. The draft convention
would categorize countries based on their laws and stances on surrogacy so that couples, under
protection of international law, can choose from these groups based on their own nationality and
state laws.1 As the 2012 HCCH Preliminary Report on the Issues Arising from International Surrogacy
Arrangements states, the ultimate ‘need’ is therefore, for a multilateral instrument which would put
in place structures and procedures to enable States to ensure that these obligations are being met in
the context of this transnational phenomenon. The most important aspect of this legislative
approach is the underlying recognition that ISAs exist and that nations need to cooperate when
conflicts of law surrounding these arrangements arise. The legal issues that arise in ISAs are, in
reality, conflict-of-law and comity problems that can arise in non-surrogacy contexts and are
therefore more effectively addressed within a broader context than that of surrogacy. Hence, the
draft convention should be developed with an eye to navigating the conflict of laws and comity
problems in ISAs, with emphases on the establishment of a framework for international cooperation,
on the need for substantive safeguards, and on procedures for courts and administrative
authorities.This includes seeking to eliminate “limping” legal parentage, ensuring children can
acquire a nationality, ensuring their right to know their identity is secured, and putting in place
procedures to protect them from harm. There is a real danger that the current situation is failing

1
https://www.law.georgetown.edu/international-law-journal/wp-content/uploads/sites/21/2018/05/48-4-
Proposing-an-International-Instrument-to-Address-Issues-Arising-Out-of-International-Surrogacy-
Arrangments.pdf
children by not providing these protections. A few multilateral conventions exist that could address
the issue of ISAs, such as the Adoption Convention, but these are ineffective for governing ISAs
because parenting and reproducing are two different processes. Adoption affords the adoptive
parents the legal right to “parent” someone else’s child over whom they would otherwise not
possess legal authority, whereas surrogacy is as close as it gets for intending parents(s) to beget an
offspring with some genetic contribution of their own A few of the reasons why the Adoption
Convention will be unsuitable to govern Bilateral treaties instead of, or in addition to, the draft
convention to regulate international surrogacy arrangements will not be very effective because: i)
confusion will be created due to a plethora of disparate treaties governing ISAs from numerous
countries, making it difficult for laymen (like intending parents) to understand and interpret the
laws; ii) framing these bilateral treaties will take time because negotiations are inherently time
consuming; iii) dismantling these numerous bilateral treaties would be difficult and could lead to
further confusion if and when a comprehensive multilateral solution is reached; and iv) these
treaties may cause further cost, delay, and heartache to intending parents who choose to pursue
surrogacy. The ART Bill 2014 specified that a child born to commissioning parents who are OCI, PIOs
NRIs and a foreigner married to an Indian would not be an Indian citizen. He/she would be entitled
to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955. However, where the
commissioning parents refuse to take the custody of the child, the local guardian will be legally
bound to take care of the child or hand over the child for adoption. In such cases child will be
granted Indian citizenship The 2014 Bill and the new 2016 Bill prohibit foreigners from availing
surrogacy. To prevent any kind of issues of citizenship and nationality arising out of surrogacy, the
Union Home Ministry has instructed Indian missions and foreigners regional registration offices
(FRRO) not to grant visa to couples intending to visit India for surrogacy. This was in contrast to the
earlier medical visa rules prescribed for surrogacy. Both the Bills are seen as a setback for
commissioning parents and the surrogate mothers in India as the fertility ‘industry’ is now valued at
$1 billion

Competent Authorities for International Surrogacy arrangements

To establish a framework of cooperation and channels of communication between the concerned

countries, signatory states shall establish a uniform system of communication. The convention shall
establish a “Competent Authority” at the federal level of every state, which will be the centre point
for communication among the contracting states. The Competent Authority will be responsible for
receiving applications and granting permission to the contracting parties of the ISAs. It shall also be
the administrative authority for providing ground support to the foreign intending parent(s) or the
surrogate mothers. Functions of the Competent Authority shall be governed by an association based
on a multi-stakeholder governance model, consisting of the government at the federal level, social-
service groups, lawyers, and doctors, to avoid concentration of power in one hand. The Competent
Authority will have the power to appoint a “Governing Committee. The Governing Committee will be
the deciding authority on all applications of intending parents and interested surrogate mothers to
enter into an ISA and shall do so efficiently, with decision times not exceeding eight weeks. The
Governing Committee shall consist of seven members three doctors, one specializing in gynaecology
and specifically ART, one in obstetrics, and one in internal medicine; a clinical psychologist; a social
worker; a lawyer; and a clergyman (if the state follows personal laws, e.g., Israel). In addition, the
Governing Committee shall have a set of detectives/agents who will investigate the backgrounds of
the proposed parties to the ISAs, i.e., the intending parents and surrogates, as well as the clinics
where treatments can be performed. The Governing Committee will have a panel of surrogate
mothers who wish to rent their wombs, either for for-profit or not-for-profit purposes. An interested
surrogate shall be within an established age bracket and a citizen of the contracting state through
which she intends to apply to be a part of the panel. The surrogate shall be thoroughly investigated
on her social, financial, psychological, family, and medical background, and, subject to the
surrogate’s meeting the standards laid down by the Governing Committee, the surrogate shall be
put on the panel from which intending parents may choose their surrogate. There shall be a uniform
amount of wages fixed, world over, that shall be paid to the surrogate, apart from the medical
expenses incurred (in the case of commercial surrogacy arrangements). 2 The wages shall be revised
on a regular basis, based on the market activities and economies of the respective contracting
states. Subject to satisfaction of the conditions listed by the Governing Committee, the parties shall
be allowed to sign the ISA. The signatures shall be preceded and succeeded by counselling sessions
for the intending parents and the surrogate on their rights and liabilities arising from the contract.
Subject to the parties agreeing to the contractual terms, the contract shall be signed. An
international governing body responsible for coordination between respective Competent
Authorities of countries, and for dispute resolution between nations subject to an ISA, shall be
established. The ISA shall address issues concerning offenses, legal obligations, disclaimers,
determination of parentage, and nationality as if the intending mother and father should be the
legal parents for all practical purposes right from the time of registration of birth in the hospital
records. The intending parent(s) as well as the surrogate shall also be counselled on how to care for
the surrogate child and how to build a healthy relationship with him/her to ensure holistic
development and growth of the child.

JUDICIAL PRECEDENTS ON CROSS BORDER SURROGACY

Jan Balaz and his wife came to India and entered into a surrogate contract with one Marthaben
Immanuel Khristi.Twin boys were born out of surrogacy. Anand Nagar Palika issued a certificate of
birth to the children as per the provisions of Registration of Birth and Deaths Act, 1969. The birth
certificate showed the name of the mother as Marthaben Immanuel Khristi, the surrogate mother.
The High Court of Gujarat addressed the issue of citizenship of a child born in India to a surrogate
mother, an Indian national, whose biological father is a foreign national. Counsel for the petitioner
submitted that since both the children are born in India, they are Indian citizens by birth as per
Section 3 of the Citizenship Act, 1955. The Court opined that in the absence of any legislation to the
contrary, it was inclined to recognize the gestational surrogate who has given birth to twins as the
legal mother of the twins. It pointed out that factum of birth of the babies has been established and
that too in India to an Indian mother. Egg donor is also reported to be an Indian woman; either way
the mother of the babies is an Indian national. Even if the children are described as illegitimate
children born out of marriage in this country to an Indian national and hence, they are entitled to get
citizenship by birth. The High Court observed, the only conclusion that is possible is that a
gestational mother who has blood relations with the child is more deserving to be called as the
natural mother. She has carried the embryo for full 10 months in her womb, nurtured the babies
through the umbilical cord. The Court never referred to the ICMR Guidelines, 2005 and the ART Bill,

2
https://www.researchgate.net/publication/312570998_Cross-Border_Surrogacy_Indian_State_Practice.
2008, pending, then, in the Indian Parliament. The Court’s pronouncement recognizing surrogate
mother as the legal parent in surrogacy could create complications for child custody, maintenance
etc. The Union of India has appealed against the decision. The Supreme Court explored the
possibility of adoption on humanitarian grounds by Central Adoption Research Authority of India.
Germany offered to issue visa to the children for the purpose of adoption in Germany. As a result the
children were finally issued with German visas and the couple were allowed to adopt the children
under German laws. The children lived in India till May 2010 for two years after their birth.

Baby Manji Yamada v Union of India

Baby Manji was born under a surrogacy agreement entered into by Dr. Yuki Yamada and Dr. Lkufumi
Yamada of Japan. 3The sperm had come from the intending father Dr. Lkufumi Yamada, but egg from
an anonymous donor. Matrimonial discord between the couple resulted in their divorce and the wife
refused to honour the agreement.140 The child was born in Anand and the Municipality issued a
birth certificate stating the name of genetic father only. The genetic father Dr. Lkufumi Yamada
desired to take custody of the child, but several legal problems had to be tackled before he could
take the custody of the child. The legal option before him was to adopt the child but it would have
resulted in a long and protracted procedure. Meanwhile, an NGO called Satya filed a petition in the
Rajasthan High Court seeking to prevent Manji from being taken out of India. The grandmother of
the baby Manji, Ms. Emiko Yamada flew from Japan to take care of the child and filed a petition in
the Supreme Court under Article 32 of the Constitution. Court ruled in favour of grandmother
holding surrogacy to be legal in India. Following this, The Japanese Embassy granted Manji a one-
year Japanese visa on humanitarian grounds and Manji’s grandmother was able to take her to Japan.
The point to be noted is that in the absence of a concrete legislative measure, the professional
association of obstetricians and gynecologists, JSOG, applies an industry-wide prohibition on
surrogacy.The conservative stand of JSOG was clearly evident when they held the surrogacy
contracts are not ethically tolerable on the eve of the first surrogate child in Japan

Israeli Gay Couple Case

The case concerned the surrogacy agreement entered by a gay couple from Israel with a surrogate
mother in India. The surrogacy was performed using one of the partner’s sperm and an anonymous
donor’s egg.4 Israel regulates the practice and bars gay couples from contracting surrogacy
arrangements. It refused to grant citizenship to the twins born out of this surrogacy citing public
policy reasons. Hearing the petition the District Court of Jerusalem, which initially did not give an
approval for conducting paternity test, later consented for the paternity test, taking into account the
best interests of the children. Paternity test confirmed the genetic link between the intending father
and the child forcing the Israeli authorities to grant passports to the children. The case pointed at
the bias against homosexuals becoming parents in Israel and highlighted the public policy dimension.

3
WRIT PETITION (C) NO. 369 OF 2008

4
Report No. 228 AUGUST 2009 LAW COMMISSION OF INDIA
These cases clearly represent the legal conflicts between jurisdictions and the plight of parties
involved in cross border surrogacy arrangements.

Conclusion

The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country

Adoption, 1993 is presently the closest international instrument germane to the issue of surrogacy
and can be of assistance in clarifying knotty legal issues involved in surrogacy. India has acceded to
the above convention. It was debated whether to invoke the provisions of adoption convention to
surrogacy related issues, but the general legal opinion seems to be against extending the adoption
convention in case of surrogacy. The HCCH is at present examining the legal issues arising out of
cross border surrogacy including legal parentage and nationality. The Group identified the
jurisdictional issues in the context of legal parentage arising from (1) birth registration; (2) voluntary
acknowledgment of legal parentage; or (3) judicial proceedings. Regarding applicable law, the group
merely acknowledged the divergence of opinion between the application of lex fori and foreign law.
The Group is currently continuing its engagement to harmonize rules on the recognition of foreign
parentage, decisions and also examining the role of public policy.

With the advent of technology and growing inability of intending parents to reproduce, demand for
ISAs has been on the rise. To counter the issues arising from them, countries, for example, India,are
trying to fix the issue at a local level; however, the international nature of these arrangements calls
for a more global solution. The current situation is failing to ensure protection of children’s
fundamental rights and interests. It is therefore essential to establish a system to uniformly regulate
ISAs. The draft convention aims to control the confusion and ambiguity caused by the numerous
nations’ laws that result in illegitimate surrogacy arrangements. The pre-approval system, as
discussed above, will allow the countries concerned to agree in each individual case whether and
under what conditions an arrangement can proceed. The draft convention, which derives inspiration
from the laws and proposed legislation of countries such as Greece, Israel, and India, can therefore
be described as a sophisticated domestic approach taken to the international level. Once the draft
convention has been adopted and is subsequently functional, no exceptions should be allowed, and
intending parents of member states involved in arrangements that do not comply with the
convention should be denied any remedies. However, to effectively control the increasing issues
arising out of ISAs, countries should be encouraged to allow domestic surrogacy arrangements so
that the intending parents do not have to scout for options outside their country. This will also
control the underground surrogacy market and protect surrogate mothers and children. Banning
surrogacy arrangements cannot be an option because the desperation of humans to start a family
overrides all risks, thus making laws prohibiting surrogacy pointless. The ART Bill 2014, while having
the virtue of instituting and clarifying clinical procedures and supporting the rights of infertile
couples to access ARTs cannot be considered to be progressive as it overlooks the practical realities
associated with. cross border surrogacy in India. The Bill 2014 and new surrogacy (Regulation) Bill
2016 only recognizes the rights of the infertile couple to access surrogacy and completely ignore the
rights of single parents. Both 2014 and 2016 Bill prohibits foreigners from availing the service of
surrogacy. This makes a marked shift from the position articulated by ART Bill 2010 that allowed
foreigners to access surrogacy with a requirement to follow the medical visa rules. Surrogacy is an
economic and social reality. The “best interest of the child” standard should govern all surrogacy
regulation and surrogates need to be protected against exploitation. While the 2014 and 2016 Bills
emphasize accountability of the ART banks and ensure reduction in the malpractices associated with
surrogacy, the 2016 Bill attempts to end the surrogacy-fertility industry. The economic implications
of such a move need to be assessed. Policy makers need to remember that in a liberal democracy,
with its emphasis on the right of individuals, new modes of reproduction should be permitted unless
there is evidence that such practice causes harm to others