The case was not a straightforward one. A German citizen, Jan Balaz, had sought a declaratory judgment of the Gujarat Court that his twin children, born in Anand as a result of surrogacy arrangements, could be considered Indian nationals. Balaz and his wife, Susan Lohle, faced with her infertility, had chosen to have children through reproductive surrogacy. Such a solution would have been impossible in Germany, as in numerous other countries of the European Union, which has banned surrogacy in all its forms, whether “commercial” (i.e., for payment) or “altruistic” (i.e., rendered without explicit financial compensation). The Balazes might have considered other possibilities. They could, for example, have traveled to California, a state in which the surrogacy market is relatively mature, as measured by the existence of a reasonably settled legal framework, a well-oiled system of service providers (mediators, clinics, sellers, and buyers), and a steady flow of transactions. Or they could have chosen to go to Ukraine, where a permissive governmental attitude and the considerable availability of service providers coupled with a reliable medical system has generated a thriving, albeit not risk-free, market in commissioned children. Without presuming to guess the motivations that led the Balazes to India, theirs was a reasonable choice, one made by others in their position and encouraged by government policies that see reproductive surrogacy as an aspect of an expanding health and medical tourism trade.
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The Balaz case is part of a line of disputes that have embroiled India. In 2008, Baby Manji—a child commissioned by a Japanese couple who divorced prior to her birth—had been prevented from being expatriated by the conjoined operation of Japanese rules that prohibit surrogacy and Indian rules that restrict adoption. Ultimately, India agreed to allow the child to be entrusted to her father and paternal grandmother; concomitantly, the Japanese authorities issued a special visa on humanitarian grounds, the implication again being that this decision was not to be regarded as setting precedent. More recently, a Canadian couple failed to obtain travel documents for twins they had commissioned: DNA tests required by the Canadian authorities revealed that neither intended parent was genetically related to one of the children, suggesting a medical error in the Indian fertility lab. Ottawa ultimately issued a citizenship card to the twin who is biologically related to the couple and travel papers to the other child, with the apparent understanding that the family would file an application on humanitarian and compassionate grounds for their non-biological child and then a citizenship application. Taken together these cases have highlighted a lack of legal certainty that may ultimately undermine the demand for Indian reproductive surrogacy services while heightening the financial costs associated with the risks of uncertainty. They have also revealed the human costs of the collisions that can occur when “exporting” and “importing” states pursue conflicting policies.
Oct 18, 2016 · Pub
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Surrogacy in one state is the solution some jurisdictions have chosen. A court in South Africa has ruled that foreigners wishing to employ a surrogate must intend to live in South Africa on a long-term basis, a decision that coheres with South Africa’s tight regulations on foreigners wishing to adopt South African children: Prospective parents are also required to demonstrate that they will settle in the country. Commercial surrogacy is banned in most Australian states; in addition, several states have made it a punishable offence (including by imprisonment) for their residents to enter into commercial surrogacy arrangements overseas. The dimensions and growth of the market for babies suggest that autarky in surrogacy is doomed to repeat the history of all autarky: regulatory failure, soaring transaction costs and externalities associated with growing illegality, and, ultimately, combined international and internal pressure for rule revision.