Many intended parents are interested in understanding whether the Indian surrogacy contract they enter into is legally enforceable were the surrogate to try and keep the baby. Fortunately, these contracts have not yet been tested. Unfortunately, that means no one really knows how the contracts would hold up in a court of law, if it were ever to get to that point.
There have, however, been two well publicized legal cases around babies born through surrogacy. Both of these cases revolved around the baby’s citizenship, not the legality of the contract. In neither of these cases was the surrogate trying to keep the baby.
What these cases have in common is that the babies are effectively stateless. Neither their intended parents' home country, nor India, recognizes their citizenship. As a result, it is extremely difficult for them to get travel documents to both leave India and enter their destination country.
A very short summary of the cases:
- Baby Manji. Baby Manji was born in July 2008 to an Indian gestational surrogate with an unknown egg donor. Unfortunately, the Japanese intended parents got divorced in June 2008; the intended father wanted to raise the baby, but the intended mother walked away. Japanese law recognizes the mother as the woman who gave birth to the baby, so the Japanese embassy would not issue a Japanese passport. Even though he was the genetic father, Indian law required the intended father to adopt the baby. But, Indian law does not allow single men to adopt baby girls. While this was being sorted out, the intended father had to return to Japan, and his mother came to India care for Manji. To further complicate matters, an Indian NGO filed a court petition claiming that Manji was a victim of “child trafficking”. The Indian Supreme court dismissed the NGO’s claims and granted temporary custody to the Japanese maternal grandmother. In early November, 2008, the Indian government ultimately agreed to issue an identity certificate (not a passport) and the Japanese Embassy agreed to issue a one year visa on humanitarian grounds. Duke's Kenan institute for ethics has written a much more detailed chronology of the baby Manji case.
- Jan Balaz. In this case, Jan Balaz and his wife used a gestational surrogate with an egg donor. Twins were born in January, 2008 and in December 2009 the children were still in India. As is typical, the birth certificate issued by the municipality had the names of the intended parents. Unfortunately, German law does not recognize surrogacy so the intended parents were unable to get German passports from their embassy. And although the Indian government had initially issued Indian passports for the babies (which itself is surprising), upon learning of the surrogacy situation it asked for them back. The parents then moved to the U.K, where it would be easier for them to get non-Indian citizenship for the children. It appears that travel documents are not sufficient to get a visa to enter the U.K. or Germany, so Balez is petitioning to get Indian passports for the children. This would also effectively grant the children Indian citizenship. As a result, the intended parents (not the gestational surrogate) petitioned the Indian courts to get the Indian passports for their children issued/returned. In December 2009, the issue of granting Indian citizenship, travel documents and/or a German visa to the effectively stateless children was still winding its way through India’s courts, with the children still in India. The Indian Express has written several articles covering the Jan Balez case, as have some other publications (1, 2, 3, 4, 5).
The main issue tested in these cases was not the legality of the surrogacy contract, but rather whether the babies born to Indian gestational surrogates could receive Indian passports. Because the intended parents could not immediately get citizenship from their home country, they (and not the surrogates) pursued other avenues to prevent their babies from being forever stateless.
Nevertheless, the outcome of these cases could indirectly affect which names are put on the birth certificate, with each country’s embassy potentially reacting to these changes differently. If and when India's IMCR legislation is passed, there may be more clarity on these issues from the Indian side. But probably not from the intended parent's home country side.
The key lesson in both of these cases is to make sure you contact your embassy or consulate to understand whether they will issue passports and/or citizenship for your children born through surrogacy. And do this before you start the surrogacy process. Each country's embassy has different rules, and every surrogacy situation is unique.
Update - 18 Dec 09: The Indian courts (so far) have agreed to issue "travel documents" for the Jan Balez children, but not passports or Indian citizenship. The travel documents would presumably allow for their departure from India, but don't seem sufficient to get a Visa to enter Germany. As a result, the Indian government is pressing the German government for a "one time special Visa" to allow the babies into Germany. Additionally, the Indian court asked Balez to file an undertaking, which includes: whether he would use the travel documents only for the purpose of taking the children to Germany, adoption must be carried out in Germany, and produce a document from a suitable agency from Germany certifying that the children were in good condition.
Understandably, the Indian courts are concerned with allowing a baby to leave India's jurisdiction without paternity. Setting a precedent to allow this could be abused in the future by child traffickers.
Several issues and the way they seem to currently fall out:
a) Can your baby be stateless? Yes, your baby is stateless until it is granted a passport and citizenship by a country. In many (most) cases, you can get a passport and citizenship from your home country through its local consulate or embassy in India. However, the above shows that in some cases it can be difficult. Make sure to check with your embassy or consulate regarding your particular situation in order to prevent your baby from becoming the next stateless child story.
b) Is the surrogacy contract valid? In both cases, the courts needed to acknowledge the surrogacy contract in order to view the intended parents rather than the gestational carrier as the legal parent. From this perspective, so far the courts have upheld the validity of the surrogacy contracts. This issue is sure to come up again.
c) Can babies born in India through surrogacy get Indian passports (if the intended parents are non-Indian)? In both cases, "travel documents", rather than a passport and the citizenship it would confer, were granted to the babies. The Indian government is, understandably, very reluctant to grant Indian passports to babies born through surrogacy.
d) Can a surrogate mother claim legal custody of a baby she delivers? Although the court was asked to address the issue of "whether the gestational carrier/surrogate mother will have any parental right to a child so born, even if there is a valid and legally enforceable agreement of surrogacy having contrary stipulations'', it did not issue a specific verdict. In the Balez case, it does not seem to be moving in the direction of giving the surrogate mother (who hasn't asked for it) legal custody.
Update 2 - 14 March, 2010: The parents are now pursuing their last resort - adoption in India. The procedure seems to be stuck in bureaucracy as The Central Adoption Resources Agency, which is charged with handling adoptions, (CARA) does not grant adopted status to surrogate children. At a 25 Feb hearing, the Central Adoption Resource Agency indicated its willingness to waive its restrictions on surrogate children. The hearing was adjourned until March 16. The court asked the government to file an affidavit on its willingness to relax the adoption norms. The babies are still in India.