Nepal earthquake unearths the plight of Indian surrogate mothers and intended parents: How to protect oneself in overseas surrogacy
The Nepal earthquake has brought to limelight yet another incident where the rights of the surrogate mother, the Intended parents and the children have been compromised.Headlines like the ones mentioned below hit the news & media hours within Nepal earthquake.
“Quake unveils gay couple and surrogacy connection of Israel and Nepal”
“Why the Nepal earthquake has got India and Israel talking about cross-border surrogacy”
“Australian parents of babies carried by Nepali surrogates warned of delays”
“Why surrogacy issue emerges after Nepal earthquake”
This write up aims to address why such a situation arose and what can be done to not let such a situation come up again and again.
Surrogacy Laws India had informed the Indian authorities long back with respect to the improper way the Indian doctors/clinics/agencies/middle man etc had devised to bypass the Indian regulation banning non married, homosexual & single parents(MHA notification dated 9th July *** and are luring the innocent Intended Parents into starting surrogacy process in Nepal.
“Earlier these gay couples used to come to countries like India to get ladies agreeing for surrogacy but now, after India made amendments to its rules of surrogacy in *** they turned to Nepal.The quake-hit country does not allow its women to go for surrogacy.”
“The issue of surrogacy in Nepal first came to the fore in March *** after a case was filed at the Kathmandu District Court over the property rights of a baby delivered through surrogate mother.The court had ruled that the child “is equally entitled to inherit parental property.”
The child in the above case was born to Nepali Parents and not foreigners and thus it set no precedent/rules or guiding principles for surrogacy in general.
“The lack of laws haven’t deterred many Nepali parents without children to secretly use surrogacy to have children in hospitals in Nepal and India, while Indian mothers routinely come to Nepal to give birth.”
Nepal has no law to govern surrogacy and doesn’t permit its own citizen to use surrogacy or be used as surrogate mother.The Nepal government in late *** notified that foreigners are allowed to commission surrogacy but the surrogate mother should be a foreigner too.This implies that women from India are being used, convinced, lured, mislead or even be trafficked to act as a surrogate mother.
“A Cabinet meeting has passed the proposal tabled by the Ministry of Health and Population, opening the door to foreign couples to have babies through surrogacy in the country as long as the surrogate mother is a foreigner.”
“Earlier these gay couples used to come to countries like India to get ladies agreeing for surrogacy but now, after India made amendments to its rules of surrogacy in *** they turned to Nepal.The quake-hit country does not allow its women to go for surrogacy”
As soon as India closed its door for certain sets of Intended Parents, Thailand emerged as the next surrogacy destination.However the journey for Thailand to become the next surrogacy capital was cut short with the government stiffening the already existing surrogacy prohibiting laws.The next to come in limelight was Nepal.Though the recent earthquake in Nepal has abundantly left open to the world the plight of the surrogate mothers still the surrogacy industry thrives to continue.
“An unexpected fallout of the recent earthquake in Nepal was the evacuation by the Israeli government of 26 newborn surrogate babies from the ravaged country even as the mothers, mostly Indian women, were left behind.”
“Dozens of Indian surrogates in Nepal are believed to be carrying babies belonging to infertile Australians who have been frantically trying to ensure their wellbeing after last week's catastrophic earthquake.”
“A report in Time Magazine suggests that a further *** women, some Nepalese and some Indian, are still carrying babies for Israelis however, are stranded amidst the earthquake devastation.”
The Indian surrogate mothers despite of having the accessibility of returning back to India are not able to do so because the Indian laws never permitted the surrogate mothers to act as a surrogate by going in a different jurisdiction.The child if born in India will be considered as the legitimate child of the surrogate mother & her husband and not Intended Parents as per Sec *** of the Indian Evidence Act.
“If the Indian national mother chooses to return to India, in view of the uncertainty in Nepal in the wake of the earthquake, and has the baby here, then there is nothing that the Indian government can do as she is an Indian citizen".
“But it could mean that the surrogate mother ends up keeping the baby, which is not what she usually expects or wants to do.The child will get a birth certificate that does not identify the commissioning parents.Also the FRO/FRRO will not issue an exit visa, and the foreign government will not give them a passport because the commission was in contravention to Indian laws.”
Nations across the world had warned their Intended Parents to not chose the decision of going in countries like Thailand, Nepal etc as their laws are still in the nascent stage.
“Nepali parents seek legal advice on surrogacy.“I have no answer for them because there are no laws,” she told Nepali Times.“But I find it really suspicious that foreigners are allowed to have surrogate babies here when there is no provision for Nepalis.”
What is the way out for doing at least your bit in minimizing the exploitation?
Exploitation/illegal activities/improper acts happen when the demand for a particular thing is more and the supply is less.The same rationale of economics needs to be applied in case of surrogacy as well.The world over need of childless couples engaging in overseas surrogacy in India is more than what Nepal can provide.Hence to meet the need the service providers’ surrogacy like any other industry has devised a way out to fill the gap.However what needs to be noted in this approach is that the surrogate mothers are often for a small sum of money asked to leave the comfort and emotional companionship of their husband and children and move to Nepal.The worse happens when they are in any manner exposed to exploitation by the middleman or any other service provider & the law of the foreign land & their own land is lacking to safeguard them.
“Sources say surrogacy in India and Nepal are managed by middlemen working with political protection, and there is a nexus between them and private hospitals.”
“Women’s right and health activists in both India and Nepal say that while surrogacy is needed, the lack of regulation and ill-advised laws will encourage human trafficking.As it is surrogacy is often manages by middlemen, and surrogacy contracts are rarely signed by parties involved – commissioning parents, surrogate mothers, doctors and clinic managements.”
Surrogacy Laws India submits that though the Indian laws don’t specifically ban the surrogate mother from acting a surrogate in Nepal but there are also no laws allowing the exploitation of the surrogate mother’s reproductive capacity.
Why not a balance between the desire of the Intended Parents and the need of the surrogate mother is achieved by small steps like demanding more transparency in the surrogacy procedure from the service provider side, a tab on the compensation the parents agree and what the service providers really pass to the surrogate mother, tracking whether she is really receiving the high class medical treatment the Intended Parents are paying for from their hard earned money etc.And most importantly why can’t we make the service provider accountable for providing the correct legal status of surrogacy in a country.When the laws and policy of a nation are weak and tend to harm/exploit/damage a particular thing/section of people then why not take a comprehensive & detailed legal counseling from independent attorneys & lawyers so as to secure your rights in a manner that they not infringe the rights of the party which has weaker bargaining power but still will give you the gift even the most powerful person can are sometimes unable to be blessed with.
The Indian Government also has a very crucial role to play in a situation like that of ‘Nepal Surrogacy industry thriving on Indian Surrogates’.The indefinite delay in the enactment of the ART Bill *** by the government has provided a platform for the malafide intentioned people operating in the field of surrogacy to make use of the loophole in the surrogacy guidelines and take surrogate mothers to Nepal in a most immoral, corrupt and unethical manner.Stricter and well-thought law provisions should be introduced via the ART Draft Bill *** to prevent such exploitative activities but the same should be done sooner than later to avoid and stop exploitation of the surrogate mothers.
Please feel free to write to us if you have any query or need legal counseling/advise at ***
The excerpts in the write up have been obtained from various news articles and newspaper clippings.The source of the same can be obtained on request from Surrogacy Laws India.We express due courtesy to all the newspaper/media houses whose articles are quoted above.
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