INDIAN BAR REVIEW

&tems (through
artificial insemination) in e+change for costs $lus 234#444 an to terminate her rights as a mother (before the baby was e"en concei"e )( ,$on the birth of the baby (1elissa) an the subse/uent han o"er to the 1r( &terns as agree # 1rs( Whitehea 5became ee$ly isturbe # isconsolate# stric!en with unbearable sa ness(5 &he $ersua e the 1r( Sterns to gi"e her one last wee! with the chil an fle to 6lori a with her husban an
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(ii) Economic necessity is a reality for many of the

women who become surrogate mothers - but this oes not ma!e surrogacy arrangements in"ali # it is sim$ly a reflection of the reality of the situation% (iii) &urrogacy oes not turn chil ren into commo ities# es$ite the fact that they are effecti"ely the sub'ect of a contract( In a ition# some 'uris ictions (inclu ing )alifornia) allow inten ing $arents to ma!e an a$$lication for a $arental or er before the chil has been born( *he inten ing $arents are therefore the legal $arents of the chil as soon as the chil is born( Inten ing $arents can be attracte by this because of the concern of the surrogate changing her min $ost-birth( American lawyers warn that there coul be me ical Insurance co"er im$lications in the case of $re-birth or ers which coul a significant cost to an alrea y e+$ensi"e $rocess( &imilar $rinci$les go"ern surrogacy in In ia an ,!raine# two 'uris ictions which often attract inten ing $arents without the fun s to tra"el to )alifornia( In In ia the names of the inten ing $arents will automatically a$$ear( on the chil -s birth certificate# without the nee for a $arental or er( *here is no legislation which s$ecifically allows commercial surrogacy# but it has been clearly establishe by the In ian &u$reme )ourt that commercial surrogacy is lawful( .egislation to co ify the current $ermissi"e $ractice is being $lanne ( In ,!raine commercial surrogacy is lawful un er the country-s robust free om of contract laws# set out in the )i"il )o e( As in In ia# the $rocess of the inten ing $arents- names a$$earing on the chil -s birth certificate is automatic without the nee fora $arental or er( ,!raine oes im$ose the a itional re/uirement that there must be two inten ing $arents rather than a single $arent( 0

CASE OF BABY 'M'

1r( &terns entere into a surrogacy agreement with 1ary Beth Whitehea in which she agree to bear the chil of 1r(

Vol. XX XIX (3) 201 2

the baby( *here# they too! e"asi"e maneu"ers to a"oi etection before being or ere to turn o"er the chil ( *he &terns file suit# see!ing $ossession an ultimate custo y of the chil an enforcement of the surrogacy contract( After a lengthy trial# the court or ere that 1rs( Whitehea -s $arental rights be terminate an that sole custo y of the chil be grante to 1r( &terns( *he court also entere an or er allowing the a o$tion of 1elissa by 1rs( &terns# all in accor ance with the surrogacy contract( 1rs( Whitehea a$$eale ( *he New 9ersey &u$reme )ourt ecision $rohibite a itional surrogacy arrangements in that state unless 5the surrogate mother "olunteers# without any $ayment# to act as a surrogate an is gi"en the right to change her min an to assert her? $arental rights(5 &e"enteen other states ha"e since a o$te similar gui elines( *he emotional courtroom battle for custo y of Baby 1 has cast a shar$ an is/uieting light on the tangle of ethical an legal uncertainties surroun ing the growing $ractice of surrogate motherhoo ( &urrogacy is more common in the ,nite &tates than it is in the ,nite @ing om but the certain lan mar! 'u gements show that abo"e all else# e"en the surrogacy agreement# the test of 5best interest of the

chil 5 has been a o$te ( In the highly ebate case of Baby 1 the surrogate mother refuse to relin/uish the baby for 234#444 as agree ( *he &u$reme )ourt of New 9ersey state that the surrogacy contract was against $ublic $olicy an hence in"ali ( )usto y was awar e to the commissioning $arents of the chil !ee$ing in min the -best interest- of the chil (s

COMMERCIAL SURROGACY IN INDIA

)ommercial &urrogacy has become so ram$ant in In ia that it has now been nic!name the -rent-a-womb- ca$ital an the surrogate mom ca$ital of the worl # where high-class women -hire- a womb on -rent- to carry their chil to full term( )ommercial surrogacy is when the surrogate mother carries the chil in her womb to term an then relin/uishes the chil to the commissioning $arents# for consi eration( *he basis of this is a surrogacy agreement# which emarcates the liabilities an intentions of the $arties concerne ( In another case# Aonatan an Bmer Cher: an Israeli gay cou$le became $arents in In ia# when their chil was concei"e with the hel$ of a surrogate mother resi ing in 1umbai# in a fertility clinic in Ban ra( It is re$orte that a baby boy was born to them at Diranan ani Dos$ital in Eowai (1umbai) on Bctober 3F# F44<( &ince Israel oes not

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ia(org8wi!i8BabyH1( ia# 1umbai# 3<(33(F44<(

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