30 September 2015

Debra Wilson

Nepal may just be one of the shortest lived destinations on the international surrogacy list as the Supreme Court will consider over the next few weeks whether to permit the practice of surrogacy to continue.

Nepal emerged last year as a potentially popular Asian destination following India’s 2013 limited ban on international surrogacy for single and same sex couples, and Thailand’s recent ban on commercial surrogacy. While there are no laws regulating surrogacy in Nepal, several hospitals report being issued with Government “permits” to engage in surrogacy services.

In September 2014 the Nepalese Cabinet decided to permit international surrogacy (expanding on the 2014 National Health Policy which permitted surrogacy for Nepalese citizens) provided Nepalese were not donating sperm or eggs or acting as surrogates. This reportedly led to an influx of Indian women into Nepal to act as surrogates.

Nepalese tourism received bad press when, following two earthquakes, Israel evacuated 26 and then 6 surrogate born children, many under the age of 6 weeks and at least 9 of which who were born prematurely. The surrogates themselves were not evacuated, and therefore those children without intended parents in Nepal at the time of the quakes were left to be cared for by other Israeli passengers during the flights.

In the last week in August, the Nepalese Supreme Court issued an interim order closing surrogacy services. This order will remain in place for 15 days, at which time it will rule on a petition to ban surrogacy outright. The Nepalese Government will be very busy with a ‘long list of questions regarding the legal rights of the parties involved’ to answer during this time.

Nahakul Subedi, spokesman for the Supreme Court, commented that “there are no laws regarding surrogacy… it raises many constitutional and legal questions… so the court issued a stay order on surrogacy services yesterday… until the case is settled.”

The stay will not affect those who have already begun surrogacy pregnancies, which will be a point of some relief for the 60-80 Australian couples with pregnant surrogates in Nepal. It will affect any future arrangements or pregnancies, which has resulted in the Australian Department of Foreign Affairs and Trade issuing an advisory “strongly recommend[ing] that commissioning couples not consider surrogacy in Nepal.”

Building on an assumption that the interim order will become permanent, new surrogacy destinations are being sourced, with Canada interestingly emerging as a front runner.

15 August 2015

Debra Wilson

 Is the idea of requiring a genetic link between parent and child a utopian ideal that is ‘far removed from the social reality of society?’

This is an issue recently addressed by the High Court in Pretoria. In October 2014, the Court heard arguments on behalf of a 56 year old woman, who has been trying unsuccessfully for 13 years to have a child. Her journey has involved 18 In Vitro Fertilisation attempts, with the two successful implantations resulting in miscarriages. Finally, she made the decision to use both a surrogate and an egg donor, giving up on the idea of a genetic link to the child. While she had originally intended to use her husband’s sperm, the couple had subsequently divorced, resulting in the need to also use a sperm donor.

Under South African law, surrogacy is permissible provided there is a genetic link with at least one of the intended parents. In her case, this criterion would not be met. The applicant, joined by the Surrogacy Advisory Group, therefore applied to the High Court for a declaration that the requirement of a genetic link be struck down as unconstitutional and as a human rights violation.

The Social Development Minister, Bathabile Dlamini opposed the application, arguing that the requirement of a genetic link was “the entire basis upon which the surrogacy law was introduced in South Africa.” Without a genetic link, the Minister felt that the agreement was not one of surrogacy, but of creating a child for adoption.

Judge Basson disagreed with the Minister, commenting that “a family cannot be defined with reference to the question whether a genetic link between the parent and the child exists. Our society does not regard a family consisting of an adopted child as less valuable or less equal than a family where children are the natural or genetically linked children of the parents.” It was therefore appropriate that the genetic link requirement be struck down.

The Surrogacy Advisory Group responded positively to this decision, commenting that “We are delighted that the court has taken the stance to protect infertile people from discriminatory legislation” and other advocates commented that this would likely lead to an increase in surrogacy arrangements.

As an interesting postscript, the Social Development Minister found herself on the receiving end of a punitive cost order, for “flagrantly disregard[ing]” her constitutional duty to ensure that evidence is placed before the court in a timely manner. 

The next step is for the issue to be appealed to, and considered by, the Constitutional Court. The High Court’s declaration of unconstitutionality must be confirmed by the Con Court before it can be of effect.

So, does genetics matter? This seems to be the question for 2015, one that has also recently been considered in the European Court of Human Rights and in China. The uncomfortable answer (for the judges in question) is that if legislation requires it, then it is for Parliament to change, unless judges are prepared (as they often are in surrogacy cases) to engage in creative judicial interpretation. Fortunately for the applicant in this case, the South African judge was permitted to strike down a requirement that she considered unconstitutional and removed from social reality.

8 August 2015

Debra Wilson

 Genetics became the determining factor in a recent custody dispute in China.

Following the death of their son, a couple sought custody of their 5 year old twin grandsons on the basis that their son’s wife had no legal relationship to the children. Despite being listed as the biological mother on the birth certificates, evidence was introduced to suggest that the woman was not genetically related to the twins but that they were surrogate born. As surrogacy is illegal in China, the couple argued that she could not claim a legal relationship to the children. The court agreed, awarding custody to the grandparents.

Lawyers for the woman subsequently claimed that the illegal nature of the surrogacy arrangement should have been an irrelevant consideration in the present case: “the mother can be blamed for the illegal way she got her babies, but that has nothing to do with guardianship. It’s unfair that she lost the children… she’s taken care of them since they were born for 5 years and done them no harm. It’s wrong to take her children just because she is not the biological mother.”

The outcome of the decision might have been influenced by its timing. The Chinese Central Government (along with several individual provinces) has recently announced plans to ‘punish’ medical personnel involved in surrogacy services, and to ‘cleanse’ any media sites advertising for surrogacy services. The Nationwide campaign will involve 12 Government Agencies, and take place over 9 months. This campaign appears to be a response to increasing use of surrogacy in China. While surrogacy is illegal in China, this prohibition appears to be largely ignored. A clinic, which receives on average 510,000 yuan for a surrogacy arrangement, is unlikely to be deterred by a maximum fine of 30,000 yuan. In 2009 a Guangzhou newspaper reported that there were an estimated 25,000 surrogate born children living in China. It is likely that this number has dramatically increased since then, as it has in many other countries. In 2012 a study revealed that infertility amongst women of child-bearing age had increased from 3% two decades ago to 12%. One company in the Guangzhou province recently revealed that it was involved in around 300 cases per year.

One wonders if the removal of the children in this case was a way of punishing the woman for entering into an (illegal) surrogacy arrangement (see recent European Court of Human Rights cases) or whether the court genuinely believed that the children’s best interests were to live with their genetic grandparents. Either way, these children have lost both their father and mother (in their eyes, at least) in a short period of time.

20 September 2015

Debra Wilson

“None of these judgments rules on the question of prohibiting or authorising surrogacy arrangements.” In the past year, the European Court of Human Rights has delivered judgments in three cases involving surrogacy arrangements, while at the same time being very clear that it is not passing judgment on the practice of surrogacy itself. Instead, it has focussed on issues relating to guardianship, parent-child relationships not recognised under law, and the separation of a child from his family. All in contexts that happen to have surrogacy as part of the background facts. 

The European Court’s hesitation in considering surrogacy per se is understandable. Its member states take very differing views on whether it should be permitted or prohibited: 14 member states expressly prohibit surrogacy, 10 prohibit it under general provisions, 7 expressly authorise it and 4 tolerate it. Since the Court has thus far been asked to consider surrogacy as part of an application for a breach of the right to family life under Article 8 European Convention on Human Rights, the Court has felt more comfortable focussing on the specific claimed breach and not the fact of the surrogacy.

Is this an unrealistic approach? Yes, says the European Centre for Law and Justice (who in fact provided a third party submission in one of the cases). In fact, in its opinion, the Court ‘is progressively legitimising surrogacy by a rapid succession of decisions each carrying further the liberalisation of this practice and the logic of the right to a child’.

So what have the cases been about? The first was Mennesson and Labassee, in which the Court accepted that the Article 8 rights of the Mennesson twins and Juliette Labassee (born to US surrogates in 2000 and 2001) had been breached by the French Government’s refusal to enter their US birth certificates on the French register (making them French citizens and recognising their intended parents as their legal parents).

The second was D v Belgium, a claim by the intended parents of D that the Belgian Government’s refusal to issue travel documents enabling D to be brought back to Belgium after his birth to a surrogate in the Ukraine was a breach of Article 8 as it resulted in a separation of D from his intended parents, who needed to return to Belgium. The claim failed on the facts: the separation was short, and the intended parents were largely responsible due to their failure to supply required documentation in a timely manner.

The third was Paradiso. In this case, an Italian couple claimed a breach of their Article 8 rights following the Italian Government’s removal of their surrogate-born child from their home. The boy was placed in foster care and later adopted. The claim succeeded, but the compensation awarded was monetary only: it was considered to be in the best interests of the boy, who had been living under a new name for two of his four years, to remain with his new family.

Can the European Court continue to discuss surrogacy cases without actually discussing surrogacy? This will be interesting to find out, since it has agreed to hear three more such cases this year, plus an appeal to the Grand Chamber in the Paradiso case.

Does the European Court have an opinion on the importance of a genetic link between parents and child(ren)? Again, we might need to wait for the next cases to decide this. In Mennesson, this is a key element of the decision. The Court comments that determining legal parentage ‘takes on a special dimension where… one of the intended parents is also the child’s biological parent’ and the President of the Court later remarks that ‘everyone must be able to establish the substance of his or her identity, and in particular the legal parent-child relationship with a genetic parent’. The next two cases, however, appear less certain. In D v Belgium it was sufficient that the applicants acted ‘like parents’. The Paradiso case is directly on point: unlike the other two cases there was no biological link present (due to a lab mistake). The majority considered that ‘the State must take into account the best interests of the child, irrespective of the parental relationship, genetic or otherwise’.

10 September 2015

Debra Wilson 

A story recently reported by Canadian newspapers highlights a major concern with surrogacy: who makes the decisions during the pregnancy?

The immediate response is that the decision is for the pregnant woman to make: her body, her decision. Any other outcome challenges her autonomy over her body, and strengthens the ‘commodification’ argument against surrogacy.

What does she think, though? If she sees herself as helping out the intended parent(s), and carrying a child or children for them, does this mean that she should acquiesce to their wishes? What if the intended parents request an abortion or reduction in the case of multiples? It would still be ultimately her choice, but what are the consequences? The intended parents have a degree of power here. They can refuse to care for the child, or refuse to make whatever payments had previously been agreed upon. Then what? In many countries the surrogate is the legal mother of the child, and any surrogacy agreement is not illegal, but not enforceable. This leaves the surrogate legally responsible for the child(ren) with no financial help from the intended (possibly genetic) parents

Canadian Kari Smith’s decision puts this in context. She agreed to act as a surrogate for another Canadian couple, now living in the Caribbean. Two embryos were successfully implanted, resulting in three children, a singleton and twins. Thrilled, she informed the intended parents, who immediately replied ‘we need to find out about reduction right away’. As Smith comments, ‘they absolutely didn’t want three babies’. The Head of the Agency which introduced Smith and the intended parents agreed with this, remarking that the intended father would ‘rather have no babies than three.’

Smith was informed by a lawyer that under the surrogacy agreement the expense payments could be stopped if she did not agree to the reduction. The agreement had, interestingly, allowed for triplets to be reduced to twins, but Smith commented that ‘she gave the matter little thought’, knowing that only two embryos had been implanted. Doctors had not told her the possibility that one embryo might split, resulting in twins or triplets.

In a difficult and traumatic decision, she agreed to reduction of the singleton. The unthinkable then happened, and one of the twins did not survive.

Why would the intended parents seek reduction? Smith now believes that it was for medical reasons, since there is an increased risk of complications and medical issues with multiple births, particular with triplets. Might there be another, more ‘calculating’ possibility? The reports mention her initial concern, related to immigration. The intended parents were Canadian citizens working in the Caribbean, which has a ‘tightly restricted’ immigration policy. This does not permit foreign workers to bring more than two children into the country. The birth of triplets would have resulted in the intended parents losing their jobs and having to leave the country.

This story serves as a warning to those considering surrogacy, and raises many questions for consideration. The idea of making surrogacy contracts unenforceable is no doubt designed to send a message to society that this kind of contract is morally problematic, as well as to make sure that intended parents cannot control or influence the choices of the surrogate during her pregnancy (anything from forced abortions, to diet/exercise/lifestyle decisions). Smith’s experience suggests that this latter effect can also occur through not making these contracts enforceable. Clearly, more consideration of the legal and moral effects of surrogacy contracts are needed.

20 August 2015

Debra Wilson 

In 2014 a UK newspaper told the story of a Manchester couple and their difficulties in obtaining a passport for their surrogate-born child. Their comments appear reflective of many stories told by intended parents: “its almost like no one knows the process”. They explained further:

“when we ring the passport office helpline we get a request for a reference number but for overseas applications there is no reference number. They are adamant that there is a reference number but there isn’t… we know more about the process than they do.”

India’s lack of regulation of surrogacy is well known. A Bill, drafted by the Indian Council of Medical Research has been in process since 2005, is now in its third draft, and shows no real sign of moving forward. This lack of progress in regulation makes sense when one considers that the Bill would regulate (limit) a 2.3 billion dollar industry involving 1500 clinics across India.

The External Affairs Ministry has recently stepped forward, however, and has issued Guidelines “for the issue of passport to minor children born to Indian or foreign genetic parents through surrogacy in India”. The Guidelines require the “Genetic Parents” to submit:

• The surrogacy agreement, duly registered under the Registration Act;
• A certificate issued by head of fertility clinic;
• A birth certificate issued by a competent authority in the name of the genetic parents of the surrogacy child; and
• DNA profiling test establishing parentage by government or government approved laboratory.

While these Guidelines appear helpful, an immediate problem emerges: the lack of a “government approved laboratory” in India places a very large hurdle in the way of satisfying all four requirements. Fortunately, until such laboratory is approved, the Ministry has stated that it will accept an affidavit sworn by the genetic parents before an Executive Magistrate.

There is also likely a fifth, unmentioned, requirement, being that the intended parents demonstrate that they have paid all money associated with the surrogacy. This is currently seen as a requirement for issue of passports.

In other news out of India, there is (another) planned Bill in the pipelines requiring the payment of a bond, in case the intended parents refuse to accept responsibility for the child. Also, the Supreme Court is currently hearing an appeal from the 2009 Gujarat High Court decision in the Jan Balaz case, which held that children born in India to gestational surrogates are Indian citizens.

8 September 2015

Debra Wilson 

A single man can adopt his surrogate born son, but cannot be granted a parenting order for him. Although a seemingly bizarre and inconsistent statement, the wording of the legislation allowed for no other outcome in a recent UK decision.

Z was born in August 2014 to a US surrogate. The applicant, his genetic father, is a UK citizen. Under UK law the birth mother is Z’s legal parent and the applicant must either apply for a parental order or adopt Z to create a legal relationship with him. A parental order was chosen, and subsequently declined due to the wording of the legislation.

According to s54 Human Fertilisation and Embryology Act, the court may grant a parental order “on an application made by two people…”. President Munby concluded that this language had been deliberately chosen in 1990 in the initial Act, and again reconsidered in 2008 in the current version. Parliament had not overlooked the fact that adoption by single people has been permitted in the UK since 1926. It had simply considered that a different approach was necessary in the unique circumstances of an application for a parenting order following a surrogacy arrangement. Commented Minister Dawn Primarolo, Minister of State, Department of Health:

“surrogacy is such a sensitive issue, fraught with potential complications… There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.”

The applicant argued that the requirement of two people ‘offended against one of the cardinal principles of 21^st century family law that there should be no discrimination against increasingly different kinds of family which society is creating’ as well as being out of step with adoption legislation. The requirement of two people should therefore be read down to allow the application by a single person. While appearing to agree with the arguments, President Munby had to reach the conclusion that he ‘had no power’ to grant the order sought, even though the application was supported by the surrogate (the legal mother of the child by UK definitions) and social workers in both countries. Section 54, he commented, ‘could not be clearer’ and ‘Parliament, for whatever reasons’ thought it appropriate in 2008 to require two applicants. This was a ‘clear and prominent’ and a ‘fundamental’ feature of the legislation and a ‘cardinal’ or ‘essential’ principle of the legislation. Reading the legislation down was therefore not possible without ‘ignor[ing] a key feature of the legislation.

Despite the fact that the intended father’s application for parental order was supported by the surrogate mother and officials and social workers on both sides of the Atlantic, the order could not be granted. Instead, the boy was made a ward of the court. Adoption remains an option.