Trump Administration Taking Action Against Underground Surrogacy in California: Law related to surrogacy that you must know!

It’s  process in which a woman carries and delivers a child for a couple or individual. It’s an arrangement where a woman (the surrogate) carries and gives birth to a child for another person or couple (the intended parents). Surrogate mothers are impregnated through the use of in vitro fertilization.

Why in News ?

California has emerged as a center for “commercial surrogacy,” a practice whereby foreigners effectively rent American wombs in return for U.S. citizenship.Officials say these couples often live in upscale apartments or homes in the Los Angeles suburbs, which residents call “baby farms.”  Illegal Chinese birthing organizations organize the trips and charge up to $100,000. However, these practices in USA is not something new but can be traced going back a decade.

Acting U.S. Attorney Joseph McNally told NewsNation that 30,000 Chinese children were born with U.S. citizenship through this “system.”  These were criminal organizations that were active in the United States as well as recruiters in China.  Hospitals were contacted by the organizers of this event.  It was a business.  These schemes’ organizers were in charge of thousands of babies’ birth tourism. It’s pertinent to note here that Lax U.S. laws governing international surrogacy allow foreign nationals, to “rent a womb” from American women. 

However ,Trump administration has started taking strong action against the corrupt practices that have been prevalent in America for a while. A contentious executive order intended to terminate birthright citizenship was signed by President Trump in January ,though it hasn’t been put into effect yet  but Trump administration is cracking down on an underground industry in California in which Chinese nationals pay money to baby brokers to bring pregnant Chinese women into the country and have their infants delivered as US citizens.

Laws Governing Surrogacy: USA

The US federal government does not regulate surrogacy, meaning each state has the authority to establish its own laws regarding surrogacy arrangements. This leads to a patchwork of laws across the country, with some states being “surrogacy-friendly” by allowing compensated surrogacy(e.g. California Surrogacy Law)and others not. 
Traditional surrogacy, in which the surrogate is also the genetic mother, is less popular and may encounter legal issues in some areas. In contrast, the majority of states like California concentrate on gestational surrogacy, in which the surrogate bears the child but is not genetically related. Though traditional surrogacy is permitted in California, but is not widely regulated and is usually discouraged for ethical reasons. Some states allow intended parents to obtain pre-birth orders like California , which establish their legal parentage before the child is born, while others require post-birth orders or adoption proceedings. 

As far as Surrogacy law of California is concerned it requires that both parties in a surrogacy agreement be represented by legal counsel when drafting a surrogacy agreement or contract. Any surrogacy contracts must be notarized or otherwise witnessed before the surrogate may take any medication in connection with the embryo transfer procedure.

According to California Supreme Court decisions, surrogacy is highly permitted under California law.  California first developed and later reaffirmed its stance that intent determines parentage in gestational surrogacy cases in the well-known decisions of Calvert v. Johnson (1993) and Buzzanca v. Buzzanca (1998).  A gestational surrogacy law went into effect on January 1, 2013, allowing and legalizing surrogacy in California.  A lot of intended parents and surrogates now finish their surrogacy journeys in this secure, lawful setting.

By law, a surrogacy contract in California must contain:

• The date it was executed.
• The persons from which the gametes originated.
• The identity of the intended parent(s).
• The process for any necessary pre-birth or parentage orders.

In addition, like a surrogacy contract in any other state, a contract in California should also address:

• Risks and responsibilities of each party.
• Surrogate compensation.
• Agreement on sensitive issues like selective reduction and termination.
• Expectations on contact and who will be present at important appointments and during birth.

Only after a surrogacy contract is complete one can  begin the medical process of surrogacy in California. It’s important to keep in mind that California Family Code (Section 7960-7962) of Uniform Parantage Act specifically governs surrogacy agreements. The statute provides comprehensive legal frameworks for surrogacy arrangements, parantage , and the rights & responsibilities of intended parents, surrogates & gestational carriers in California.

Courts can determine a child’s parentage before the infant is born due to California’s surrogacy legislation.  The documentation pertaining to the birth of this kid must be sealed, barring special circumstances.  California courts will typically grant pre-birth orders regardless of whether the intended parents are married or genetically related to the surrogate kid.  A pre-birth order can usually be obtained without a hearing and is a pretty simple procedure. 

Courts can determine a child’s parentage before the infant is born due to California’s surrogacy legislation.  The documentation pertaining to the birth of this kid must be sealed, barring special circumstances.  California courts will typically grant pre-birth orders regardless of whether the intended parents are married or genetically related to the surrogate kid.  A pre-birth order can usually be obtained without a hearing and is a pretty simple procedure. However, Post-birth adoptions are available to those who are unable to obtain a parentage order, with options for second-parent adoption (for unmarried couples) or stepparent adoption (for married couples). 

California the couples who are intending to become a parent through the procedure of surrogacy and they must be between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as per Section 4(iii)©(I). laws do not discriminate and afford all same-sex couples, married and unmarried, the same rights and legal protections as opposite-sex parents. 

The legislation stipulates that surrogates have no parental rights over the child born through surrogacy, and the surrogate mother must voluntarily transfer parental rights to the child to the biological parents. 

Law Governing Surrogacy : India 

The law relating to surrogacy in India is governed under The Surrogacy (Regulation) Act, 2021. Section 2(zd) of the said statute defines surrogacy as a procedure in which a woman carries a child  and gives birth to a child of an intending couple and thereafter handovers the child to intending couples after the child is born. Section 2(r) providing the meaning of “intending couple ” states their eligibility in terms of age. As per the said provision the couples who are intending to become a parent through the procedure of surrogacy and they must be between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as per Section 4(iii)(c)(I). Further Section 2(h) defines “couple” as a legally married Indian man and woman, both above the age of 21 years and 18 years respectively. 

As far as eligibility in terms age is concerned, section 2(s) of the act limits the right to avail surrogacy to Indian widows or female divorcees between the ages of 35 and 45.

It’s important to mention here that In India, the Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy which has been made punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs and allows only altruistic surrogacy for Indian heterosexual married couples facing proven infertility, with specific age and health requirements for both the intended parents and the surrogate mother. Section 2(b) of the Act defines the Altruistic Surrogacy. It refers to that surrogacy practice where no monetary incentives or expenses of whatever nature are paid to the surrogate mother. Only the medical expenses and insurance coverage are being given to the surrogate mother or her dependants. On the other hand Section 2(g) of the Surrogacy (Regulation) Act, 2021, defines  “commercial surrogacy” as the commercialization of surrogacy services, including the buying or selling of human embryos, gametes, or surrogate motherhood services for monetary or other incentives, excluding medical expenses and insurance coverage for the surrogate mother. 

Eligibility Of Intended Parents:

• Must be a married heterosexual Indian couple.
• The female partner must be between 23 and 50 years old, and the male partner between 26 and 55 years old.
• They must have a certificate of proven infertility from a District Medical Board.
• They must not have any biological or adopted children.
• Both partners must be medically fit to become parents.
• They must obtain an “Eligibility Certificate” from the appropriate authority.
• The intended parents and the surrogate mother must enter into a surrogacy agreement that is registered with the appropriate authority.
• Intended parents must apply to the appropriate authority and obtain approval before proceeding with the surrogacy process.
• The Surrogacy (Regulation) Act, 2021, also establishes a National Assisted Reproductive Technology and Surrogacy Board to regulate the practice and process of surrogacy. It is  also authorised to formulate rules & regulations in order to regulate & control the practice of surrogacy in India.

Eligibility of Surrogate Mother:

• Must be a married Indian woman between 25 and 35 years old.
• She must have at least one biological child of her own.
• She must not have been a surrogate before.
• The surrogate mother must be a close relative of the intended parents.
• She must be physically and mentally fit.
• She must be a close relative of the intended parents.
• She must obtain an “Eligibility Certificate” from the appropriate authority. 
• She must give her consent  as per Section 6. No person can seek or conduct surrogacy procedures without first explaining all known side effects and after-effects to the surrogate mother and obtaining her written, informed consent in a language she understands, with an option to withdraw before embryo implantation. 

Prohibitions :

• Commercial surrogacy (where the surrogate mother is paid a significant amount for her services).
• Surrogacy for single individuals or same-sex couples.There is exclusion of unmarried women, single men, live-in partners, and same-sex couples from availing surrogacy services.
• Surrogacy for producing children for sale, prostitution, or other forms of exploitation.
• Abandoning a child born through surrogacy. Section 7 of the Surrogacy (Regulation) Act, 2021, prohibits the intending couple or woman from abandoning a child born through surrogacy for any reason, including genetic or birth defects, medical conditions, or the child’s sex, whether within or outside India.
• Using donor gametes is prohibited (unless one of the intended parents has a medical condition that prevents them from using their own gametes).

A Way Forward :

Human rights, legal, and ethical issues are brought to light by California’s underground surrogate baby industry, which exposes the intricacies and gaps in surrogacy regulations.  California continues to be a global center for commercial surrogacy because of its lax rules and acceptance of surrogacy agreements, but the lack of strict federal controls makes it easier for exploitation to occur.  The Surrogacy (Regulation) Act, 2021 in India, on the other hand, firmly forbids commercial surrogacy and permits only altruistic surrogacy under tight criteria, such as the need that the surrogate mother be a near relative. The sharp disparity between the two legal systems highlights the continuous discussion about how to balance child welfare, ethical issues, and reproductive rights on a worldwide scale.  Both governments may need to review their regulations as the surrogacy sector develops further in order to better safeguard intended parents, surrogates, and—above all—the children born as a result of these arrangements.  While encouraging moral and open reproduction methods, resolving legal issues and implementing stronger restrictions may help slow the growth of clandestine surrogacy marketplace.