Surrogacy Law Plugging the Loopholes

No Surrogacy Law in Unregulated India

Surrogacy law is desperately required in a country which ranks lower than traditionally patriarchal societies like Qatar and Saudi Arabia in the United Nations Gender Inequality Index, the Government’s intent to block commercial surrogacy for foreigners in India is reason to celebrate. Despite impressive and revolutionary breakthroughs, India’s story of gender equality remains far from inspiring.

From the rural and illiterate to the urban and literate, Indian women contend with chronic gender inequities which liberating moves like education and employment opportunities have been unable to correct. Rampant instances of gender crimes and sexist biases dominate the narrative of a country, where literacy may have unfettered women, but where decadent mindsets stymie their participation in the country’s growth story. The unregulated world of commercial surrogacy contains one such saga of exploitation of the economically challenged Indian woman, across rural and urban divides.

The Health Ministry’s affidavit to the Supreme Court this Wednesday makes the Government’s stand on the matter abundantly clear and is indeed a significant step in insuring the rights of a surrogate mother and her child. It states that, “The Government of India does not support commercial surrogacy”, and that surrogacy should be available to “Indian married infertile couples only and not to foreigners”. Arguably, the altruistic intent of surrogacy — to address the parental needs of a childless couple — cannot be contested. Celebrities, from Hollywood to Bollywood, have, in fact, rendered the idea of surrogacy eminently fetching. Be it Hollywood’s Nicole Kidman and Sarah Jessica Parker or even Elton John with a same-sex partner, to Indian celebrities like Shah Rukh Khan and Aamir Khan, couples, heterosexual and homosexual, have successfully reinforced the idea of altruistic surrogacy.

Commercial Surrogacy Needs Surrogacy Law to Prevent Explotation

However, there is reason to believe that the Rs900 crore worth surrogacy trade in India, far from being an altruistic enterprise, is predominantly an appalling tale of female exploitation, a surrogate mother in India available at less than one-third the cost of a similar volunteer in more developed pockets of the world. Declared a criminal offense by civilised countries the world over (from Australia, Japan, Canada, France, and the United Kingdom to some states in the United States), commercial surrogacy in India has had sinister manifestations, ethical and legal.

Today India is a favored destination for surrogacy tourism owing to the high-end medical science and technologies its medical fraternity has access to. This, alongside the criminally low financial costs and lack of Government regulation, has predictably led the practice into ethical and legal abuse, earning India the avoidable distinction of being an international hub of surrogacy services.

As per existing Indian laws, same sex couples with foreign nationality or single foreigners cannot commission surrogacy here even as single Indians can. Also, foreigners seeking surrogacy here must be a man and woman “duly married” and the marriage should have sustained for at least two years. Lest this descend into a regressive debate on Indian lawmakers’ apathy to homosexuality, or even their xenophobia, there is need to understand the rationale behind such a provision. Innumerable instances have been reported where a child from a surrogate Indian mother has been abandoned by its intended foreign parents without a thought to the fate of the mother or the child’s imperiled future.

Legal since 2002, commercial surrogacy in India has been open to grave misuse. The shocking case of an Australian couple forsaking one of the twin babies born to an Indian surrogate only because the two already had a child of the same sex, highlighted the need to urgently streamline this unregulated sector. In 2008, the Supreme Court had to intervene in a case where the commissioning parents were divorced during the pregnancy and the intended mother refused to accept the child. As per current Indian laws, foreign couples seeking surrogacy have to provide a written undertaking from the country of their origin that a child born through surrogacy would be taken to their country. However, this provision alone has not been able to prevent misuse.

A more comprehensive answer is available in the 2010 draft, Assisted Reproductive Technology (Regulation) Bill pending in Parliament. Admittedly, surrogacy forms only a part of the proposed Bill which intends to be a legal umbrella providing respite to childless couples while protecting surrogate mothers. Surrogacy, however, has been specifically vulnerable to abuse, claiming hundreds of economically disadvantaged women as its unsuspecting victims.

Therefore, there is urgent need for a fail-safe surrogacy law that guards the interests of the intended parents and the surrogate mother and child through a monitoring system rigorously implemented. Israel has led in this matter, becoming the first country in the world to approve of a state-ordered surrogacy policy wherein every case is scrutinized and sanctioned by the Government. Even Russia, where commercial surrogacy is legal, the industry is subject to rigid scrutiny by Governmental agencies.

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DailyPioneer.com, October 30. 2015 by Shobori Ganguli

Gay marriage signed into law in Ireland

Gay Marriage Voted in by 62.1% in Ireland

Dublin (AFP) – Gay marriage was signed into law in Ireland, five months after a historic referendum saw the traditionally Catholic nation become the world’s first country to vote for gay unions.

“The Presidential Commission today signed the ‘Marriage Bill 2015’ into law,” the president’s office said in a statement, paving the way for the first weddings within a month.

Ireland voted 62.1 percent in favour of allowing marriage between two people “without distinction as to their sex” in May, the first time anywhere that gay marriage has been legalised in a referendum.

The president’s endorsement was the final hurdle for the bill after legal challenges briefly delayed the legislation from coming into effect.

The first ceremonies should be possible by mid-November, according to Justice Minister Frances Fitzgerald.

Senator Katherine Zappone, who had long campaigned for her Canadian marriage to her wife to be recognised in Ireland, called it “a defining moment”.

“It is a deeply emotional moment for those of us who have campaigned for so long,” Zappone said in a statement.

“This victory truly belongs to the nation, it is a moment for us all.”

In a memorable moment that unfolded live on national television after the referendum result was announced, Zappone proposed to her wife Ann Louise Gilligan to re-marry her under Irish law.

International gay rights campaigners congratulated efforts by Irish activists to win public support for a “Yes” vote in the referendum.

“Tribute must also be paid to national politicians in Ireland, as all the main political parties put aside their partisan differences to campaign for the greater goal of equality,” Evelyne Paradis of the International Lesbian, Gay, Bisexual, Trans and Intersex Association said in a statement.

Marriages between same sex couples that took place outside of Ireland will now be recognised under Irish law.

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YahooNews.com, October 30, 2015

Parenting Policies-China to End One Child Policy

As China ends its one child policy, some parents ponder the pros and cons of parenting a second child.

Parenting News from Beijing: China will allow all couples to have two children, a Communist Party leadership meeting decided on Thursday, bringing an end to decades of restrictive policies that limited most urban families to one child.

The announcement came after the party’s Central Committee concluded a four-day meeting in a heavily guarded hotel in western Beijing where it approved proposals for China’s next five-year development plan, which starts next year. The terse announcement from Xinhua, the state news agency, about the sharp shift in family planning policy gave no details.

The Chinese government has already eased some restrictions in what has often been described as the “one-child policy,” and a party conference in 2013 approved allowing couples to have two children when one of the spouses was an only child. But many eligible couples failed to take up the chance to have a second child, citing the expense and pressures of parenting children in a highly competitive society.

A summary of the decision by Chinese radio news said that officials had decided to “improve the demographic development strategy, and to comprehensively implement a policy that couples can have two children, actively taking steps to counter the aging of the population.”

The initial public reaction to the party leaders’ decision was restrained, and many citizens in Beijing who were asked whether they would grasp the chance to have two children expressed reluctance or outright indifference. Some, however, were pleased.

Still, the cost and difficulty of parenting 2 children are likely to deter many eligible couples from having more children despite the relaxed rules, Mu Guangzong, a professor of demography at Peking University, said in a telephone interview.

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by Chris Buckley - New York Times - October 29, 2015

International Surrogacy Cases; Foreigners Banned

India Surrogacy Cases: Ban booming surrogacy service to foreigners

In International Surrogacy Cases News; India’s government said Wednesday it would ban foreigners from using surrogate mothers in the country, a move likely to hit the booming commercial surrogacy industry. Ranks of childless foreign couples have flocked to the country in recent years looking for a cheap, legal and simple route to parenthood.

Health industry estimates put the size of India’s surrogacy business at nine billion rupees ($138 million) and growing at 20 percent a year. But critics have said a lack of legislation encourages “rent-a-womb” exploitation of young, poor Indian women.

In an affidavit to the Supreme Court on Wednesday the government said it “does not support commercial surrogacy”. “No foreigners can avail surrogacy services in India,” it told the court, which is hearing a petition regarding the industry, adding that surrogacy would be available “only for Indian couples”.

Thousands of infertile couples, many from overseas, hire the wombs of Indian women to carry their embryos through to birth. India, with cheap technology, skilled doctors and a steady supply of local surrogates, is one of relatively few countries where women can be paid to carry another’s child. Surrogacy for profit is illegal in many other countries.

The process usually involves in-vitro fertilization and embryo transfer, leading to a rise in fertility centers offering such services.

A top fertility expert branded the government’s move discriminatory, while a leading women’s activist warned it could push the industry underground and out of reach of regulators. “Banning commercial surrogacy will send some couples onto the black market and deprive other couples of the chance of children,” Ranjana Kumari, director of the Centre for Social Research, told AFP.

“Our research shows many surrogates do not have health insurance and are paid poorly, among other issues,” she said, adding that stronger regulation rather than an outright ban was needed. The private petition to the top court seeks a halt to the importation of human embryos for commercial purposes.

Earlier this month the court in Delhi expressed its concern and ordered the government to spell out measures for regulating the industry. The government’s affidavit, presented to the court by Solicitor General Ranjit Kumar, said it would “require some time to bring the law in place”.

The government has been consulting women’s groups and the health industry on a draft bill, the Assisted Reproductive Technology, that seeks to regulate the industry.

– ‘No exploitation’ –

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Yahoonews.com, by Trudy Harris, October 27, 2015

Egg Donations, Should Women Be Paid?

Paying for Egg Donations

In an egg donations situation, should a woman who donates eggs to help people with fertility problems conceive a child be able to charge as much as she can get in a free-market transaction? Or are there ethical reasons to limit her reimbursement?

That is the issue raised in a federal lawsuit that accuses two professional societies and the fertility clinics associated with them of illegal price-fixing that limits donor compensation. A federal judge in northern California has ruled that the claim can move forward and certified it as a class action, which could go to trial next year.

Guidelines issued by the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology suggest that paying a woman more than $10,000 for her eggs is “beyond what is appropriate” and even paying $5,000 or more requires “justification.”

A vast majority of the nation’s fertility clinics follow these the guidelines. The stated rationale behind them is to avoid offering so much money that donors, especially those who are often young and poor, will rush to contribute their eggs without considering the risks.

This payment system is unfair. However well-intentioned, it favors the fertility clinics, which can keep more for themselves if they pay donors less, as well as the women who pay for fertility treatments. Meanwhile, it shortchanges the egg donors, whose wishes are ignored in the equation. And if there are indeed risks, they can be addressed and mitigated by the clinics and the doctors, who can strengthen their screening and counseling procedures and provide more information.

The money that donors get is meant to compensate them for physical and psychological tests; weeks of hormone injections to stimulate egg production; frequent tests and ultrasound examinations to track the developing eggs; repeated visits to the doctor, and minor surgery to remove the eggs when they are ready for retrieval.

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Editorial Board – New York Times, October 21, 2015

Do gay parents parents spend more time with kids?

Study finds gay parents spend significantly more time with kids

Gay parents spend significantly more time with their kids, according to a new study that challenges biases against same-sex parenting.

Researchers from the Population Research Center at the University of Texas found that women in lesbian relationships spend 40% more time engaged in child-focused activities than their straight counterparts, largely because both mothers typically offer as much time as mothers in straight relationships.

Fathers in straight relationships spend only about half as much time on child-focused activity. However, fathers in gay relationships spend roughly the same time as the mothers (around 100 minutes a day).

Lesbian couples invest 40% more time in their children

‘Our findings support the argument that parental investment in children is at least as great – and possibly greater – in same-sex couples as for different-sex couples,’ Kate Prickett, the lead author of the study, wrote on the Child and Family Blog.

‘On measures of child-focused time, children with two parents of the same sex families actually seem to receive more time investment. They received more focused time from their parents – 3.5 hours a day, compared with 2.5 hours by children with two different-sex parents.’

Child-focused activities are those that support their physical and cognitive development, such as reading to them, playing with them, helping with homework, bathing them and taking them to the doctor.

It does not include watching television or doing housework while a child is around. Child-focused activities, as well as certain family events such as eating meals together or reading books, are associated with better child outcomes. The study used 11 years of census data from 2003-2013, with a sample of more than 40,000 parents, 55 parents of whom were in gay relationships.

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gaystarnews.com – by Darren Wee, October 21, 2015

Gay Parents, Is This Country Still Not Ready?

This Country Is Apparently Still Not Ready for Gay Parents

In a couple of weeks, our nation will turn to celebrate the 20th anniversary of National Adoption Month. It’s a time of year marked with an annual proclamation by our president, special events, family gatherings, and mass adoption finalizations. Television and radio programs will burst with stories both heartwarming and horrifying in an effort to draw attention to the glaring need to find homes for the 400,000 children that linger, on average, for nearly two years in the foster care system.

As someone who’s lectured at the university level about this system, of which I am a product, I have to admit I’ve never understood why so many of my foster care brothers and sisters continue to languish in the foster care system. In truth, they should have found homes a long time ago. At this very minute, there are an estimated 2 million potential gay parents, many of whom would love to do so through adoption. Research also shows that children growing up with gay parents fare as well as children raised by heterosexual parents. That means that in the LGBT population alone there may be more than enough ready and capable parents to provide families for our nation’s foster children.

And yet 11 states continue to bar same-sex couples and LGBT individuals from adopting. That means we have enough children needing homes to fill a city the size of Cleveland or Minneapolis. We have a surplus of parents who would like to adopt them. But we’re still seeking ways to prevent them from finding each other. That makes no sense.

It makes even less sense when you consider that foster care programs cost American taxpayers $22 billion each year. That’s about $68 out of the pocket of every one of the estimated 320 million people in the United States every year.

This is but one of the many ways that nation’s love affair with homophobia is devastating our nation’s foster children. And it gets worse when we consider the effects of homophobia on LGBT children in foster care. Consider this:

• LGBT children are over represented in the foster care system. In Washington alone, an estimated 19 percent of foster children identify as LGBT — a figure that is nearly double that of the general LGBT population.
• Once in foster care, LGBT children often receive worse treatment than their non-LGBT peers. A recent study in Los Angeles County found that LGBT children experience more foster care placements and are three times more likely than non-LGBT foster children to have been hospitalized for emotional reasons.
• Many foster care caseworkers and LGBT children report that foster care is not a safe place to question your orientation, and many foster homes and families are not thoroughly assessed to see if they can support LGBT children.
•In some areas, an estimated 56 percent of LGBT children end up running away from foster care when they encounter violence and rejection. Some have even been forced to endure so-called conversion “therapy” and exorcisms.

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by Dashanne Stokes, TheAdvocate.com, October 20, 2015

Surrogate Attorney Reports American Surrogate Death

Surrogate Attorney Reports American Surrogate Death: Not the First

As a surrogate attorney, it is disturbing that it has been reported and repeated that Brooke was the first American surrogate to die of pregnancy complications though there have been such fatalities in India and elsewhere. Sharon LaMothe, a surrogacy consultant in Florida, assures me this is not so, however. LaMothe, who I spoke with via telephone and who has twice been a surrogate herself, was insistent that Brooke was not the first American surrogate to die of pregnancy related complications. She “guaranteed” me that Brooke was not the first. There have been a “few” in the past fifteen years that she knows of that likely went unreported because they all occurred earlier in the pregnancy and because they occurred prior to the proliferation of social media.

“Give me children, or else I die. Am I in God’s stead, who hath withheld from thee the fruit of the womb? Behold my maid Bilhah. She shall bear fruit upon my knees, that I may also have children by her.” Handmaid’s Tale, Margaret Atwood

In Atwood’s novel, which takes place “after the catastrophe, when they shot the president and machine-gunned the Congress and blamed it on the Islamic fanatics,” becoming pregnant is the one thing the Handmaids can do to rescue themselves from death. Not so for today’s surrogates.

Brooke Lee Brown, 34, of Burley, [Idaho] passed away Thursday, Oct. 8, 2015, at St. Luke’s Regional Medical Center in Boise, due to complications during pregnancy.”

On Oct 8, just days before her 35th birthday, Brooke reportedly died either of placental abruption – the result of the placenta separating from the inner wall of the uterus before delivery – or amniotic fluid embolisms. Both are rare pregnancy complications that can occur suddenly in the last trimester and, left untreated, put both mother and baby in jeopardy. The twins she was about to deliver any day via a scheduled cesarean section reportedly lived for a short time on life support before losing their lives as well.

The twins’ demise is not mentioned in her obituary, however, nor is there any mention that Brooke died while serving as a paid surrogate for by a couple from Spain, one of many countries in which surrogacy is illegal. Tess Shawler, of Rocky Hill Mountain Surrogacy in Idaho, who may have arranged Brooke’s surrogacies, has found American surrogates for people from Australia, Canada, Spain, England, and Germany.

Brooke’s funeral is taking place as I write this. A GoFundMe page, set up to raise funds for Brooke’s memorial service, says that she was a surrogate for five babies though it is unclear if that includes the two who reportedly died along with her and how may were multiple births.

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Huffingtonpost.com, October 19, 2015 – by Mirah Roben

Historical Gay Adoption Debate: Adult Adoption

Historical Gay Adoption Debate: The Lost History of Gay Adult Adoption

Whether you’re aware of it or not the historical gay adoption debate has been raging for years as LGBT advocates and individuals attempted to secure legal rights to property, family, security and most importantly; one another. In 1977, 27-year-old Walter Naegle was planning to go to San Francisco. He was living in New York City, which he found awful, when, while waiting for a light to change in Times Square, he saw an unusually handsome reason to stay: Bayard Rustin.

Rustin, who once said, “I believe in social dislocation and creative trouble,” organized the antisegregation Journey of Reconciliation protest, a sort of early Freedom Ride, in 1947. He was in charge of logistics for the Rev. Martin Luther King Jr.’s March on Washington for Jobs and Freedom and he worked to integrate New York City schools. “I’m not much dazzled by celebrity,” Naegle said recently, “but I had known who he was since I was in high school.”

Naegle and Rustin were attracted to each other immediately — they kissed for the first time that day — and became a couple thereafter. During their 10 years together, marriage was not discussed; it simply wasn’t imaginable. (The term “gay marriage”’— where ‘gay’ doesn’t mean ‘lighthearted’— would not appear in this paper until 1989.) Had Rustin lived long enough, however — he died in 1987 — he would have definitely been game. “Oh, yes,” Naegle said, “he was much older than I was, and his generation of people were into that kind of thing.”

Gay Adoption Debate: Shrewd Legal Play – “The adoption proved a shrewd decision!”, Naegle, as next of kin, had visiting privileges when Rustin was hospitalized.

In 1982, when Rustin wanted to ensure that Naegle — who, at 37 years his junior, would surely outlive him — would inherit his estate, he availed himself of the least-bad option: adoption. There had been an article in The Advocate about a couple in the Midwest who unsuccessfully tried to adopt each other in order to forge a legal bond. “Maybe we should try that,” Rustin said he suggested.

Naegle recalled the adoption process: First, his biological mother had to legally disown him. Then a social worker was dispatched to the Rustin-Naegle home in Manhattan to determine if it was fit for a child. “She was apprised of the situation and knew exactly what was happening,” Naegle told me. “Her concern, of course, was that he wasn’t some dotty old man that I was trying to take advantage of, and that I wasn’t some naive young kid that was being preyed upon by an older man.”

The adoption proved a shrewd decision. Naegle, as next of kin, had visiting privileges when Rustin was hospitalized for a perforated appendix and peritonitis and was eventually executor of the will. Despite the oddness of the arrangement, it was, all things considered, legally seamless.

Now that marriage equality is an American right, the gay adoption debate seems a little silly to be including partner adoptions, which are hard to fathom, an artifact of an earlier societal paradigm that, in a remarkably short period of time, has come to seem inconceivable. “People today really have a hard time remembering, let alone feeling, what it was like to be an outlaw — to be truly strangers to the law — shoved out of every legal system, and then persecuted,” said Evan Wolfson, founder of Freedom to Marry, an organization that, for more than a decade, has played a large role in the passage of same-sex marriage legislation. It is easy to forget that an American state would not decriminalize sodomy until 1961; that as late as 1966, gays and lesbians could not legally buy a drink in a New York City bar; that even after the Stonewall riots, in 1969, the American Psychiatric Association considered homosexuality a mental illness. As recently as 2000, civil unions were still not widely available and domestic partnerships didn’t offer federal protections.

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by Elon Green, October 19, 2015

Egg Donors Challenge Pay Rates

Egg Donors Challenge Pay Rates, Saying They Shortchange Women

 

On their websites, next to glossy pictures of babies, some fertility clinics and egg-donor agencies refer to eggs as a “priceless gift” from caring young women who want to help people with fertility problems. There is a price tag for eggs, though, and it is now the subject of a legal battle. In a federal lawsuit, a group of women or egg donors, are challenging industry guidelines that say it is “inappropriate” to pay a woman more than $10,000 for her eggs. The women say the $10,000 limit amounts to illegal price-fixing, and point out that there is no price restriction on the sale of human sperm. A federal judge has certified the claim as a class action, which will most likely go to trial next year.

The guidelines do not have the force of law, though they have been widely followed. But demand for eggs has increased and put pressure on their price. So some high-end fertility clinics and egg-donor agencies are ignoring the guidelines and paying far more — on rare occasions in the six figures — while donors are shopping around to get the best price. The case could shake up the $80 million egg-donor market by spurring more negotiation. It is a potent reminder that egg donation is a big business, though one with many more inherent ethical issues than others.

“The lawsuit is raising awareness of the commodification of the whole thing, and that’s good,” said Sierra Poulson, 28, a lawyer in Nebraska not involved with the case, and a founder of the online forum We Are Egg Donors. “The guidelines are skewed toward the intended parents, toward the industry making more money and business,” Ms. Poulson said. “We’re in America — the market would take care of itself, without guidelines.”

Ms. Poulson, a three-time donor, is an example of how the market works. She was paid $3,000 for each of her first two donations, in Kansas, but $10,000 in Chicago for the last. “The third time I donated, the only reason was for the money,” she said.

As women wait longer to start their families, and find their fertility has waned, the demand for eggs from young donors — typically, donors are in their 20s — has risen rapidly. Women trying to get pregnant, along with surrogates hired by gay men to carry their children, used donor eggs in nearly 20,000 monthly cycles in 2012, compared with fewer than 12,000 a decade earlier, according to the Centers for Disease Control and Prevention, which collects statistics on assisted reproduction.

While many other countries limit egg donation, and the compensation that is allowed, egg donation is essentially unregulated in the United States. But in 2000, the American Society for Reproductive Medicine established the guidelines for how much women should be paid. They say that compensation over $5,000 requires “justification,” and that more than $10,000 is “beyond what is appropriate.” The amounts have never been adjusted.

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New York Times – October 16, 2015 by Tamar Lewin