Will lengthening adoption wait and new surrogacy-artificial reproductive assistance laws push couples closer to black market adoption?

On a flight from Mumbai to Delhi last week, this writer happened to sit next to a young couple who became parents for the first time in the pandemic. During the small-talk that followed, they revealed that the baby wasn’t their biological offspring. After unsuccessfully trying to conceive for six years, they got “lucky” when their friend’s sister-in-law, who couldn’t afford to raise her third child, sought a home for her son. “After much consideration, we took her baby boy,” the mother shared. The couple hadn’t even given adoption or surrogacy a thought, because of how “tedious the process has become”.

With adoption in India being routed by the Central Adoption Resource Authority (CARA) and the government recently notifying new laws to regulate surrogacy and assisted reproductive technology, several Indian couples are deferring their dreams to become parents. Experts, however, fear that many desperate couples might go the illegal way.

Infertility is at the heart of the problem. According to research conducted by Inito, a Bengaluru-based medical technology company, around 27.5 million couples who want to conceive, currently suffer from infertility. The World Population Prospects: The 2017 Revision report estimated that the fertility rate of Indians (measured as the number of children born to a woman), had plummeted by more than half in the short span of 40 years—from 4.97 per cent during 1975-80 to 2.3 per cent in 2015-20. By 2025-30, the report projects that the rate would have nosedived further to 2.1. A fertility rate of about 2.2 is generally considered the replacement level—the rate at which the population would hold steady. When the fertility rate dips below this number, the population is expected to decline.

With lowering fertility, adoption and surrogacy seem to be the next best options for couples. But recent protocol and laws have complicated the state of affairs.

Will lengthening adoption wait and new surrogacy-artificial reproductive assistance laws push couples closer to black market adoption?

On a flight from Mumbai to Delhi last week, this writer happened to sit next to a young couple who became parents for the first time in the pandemic. During the small-talk that followed, they revealed that the baby wasn*t their biological offspring. After unsuccessfully trying to conceive for six years, they got "lucky" when their friend*s sister-in-law, who couldn*t afford to raise her third child, sought a home for her son. "After much consideration, we took her baby boy," the mother shared. The couple hadn*t even given adoption or surrogacy a thought, because of how "tedious the process has become".

With adoption in India being routed by the Central Adoption Resource Authority (CARA) and the government recently notifying new laws to regulate surrogacy and assisted reproductive technology, several Indian couples are deferring their dreams to become parents. Experts, however, fear that many desperate couples might go the illegal way.

Infertility is at the heart of the problem. According to research conducted by Inito, a Bengaluru-based medical technology company, around 27.5 million couples who want to conceive, currently suffer from infertility. The World Population Prospects: The 2017 Revision report estimated that the fertility rate of Indians (measured as the number of children born to a woman), had plummeted by more than half in the short span of 40 years - from 4.97 per cent during 1975-80 to 2.3 per cent in 2015-20. By 2025-30, the report projects that the rate would have nosedived further to 2.1. A fertility rate of about 2.2 is generally considered the replacement level - the rate at which the population would hold steady. When the fertility rate dips below this number, the population is expected to decline.

With lowering fertility, adoption and surrogacy seem to be the next best options for couples. But recent protocol and laws have complicated the state of affairs.

In the absence of legal clarity, the Delhi high court has sought responses from the Union and Delhi governments in the matter, after a hospital in the national capital refused to return the frozen semen sample of a deceased cancer patient to his family.

The parents of the deceased had moved the high court in December last year after authorities of Delhi’s Sir Ganga Ram Hospital refused to give them the frozen semen sample of their son, which they may use to continue the family line.

There is no law, policy or legal procedure in our country to decide as to who should be handed over the semen sample of an unmarried deceased man, the hospital told the high court while opposing a plea to handover the sperm samples to the family of a 30-year-old cancer patient who died in September 2020.

The hospital has said that the Assisted Reproductive Technology (ART) Act, ICMR guidelines, Surrogacy Bill/Act are “silent” about the legal heirs of the unmarried deceased man to whom the frozen semen sample is to be released.

The hospital has said that in absence of any guidelines, regulation and direction on this issue of disposal and utilisation of semen samples of an unmarried person, they are unable to make final disposal of the frozen semen sample of the deceased. It sought that the court may pass appropriate orders considering the current scenario.

As an adoptive parent, I’m backing a new petition: Make self-employed people eligible for statutory adoption pay.

The petition says: “Ensuring statutory adoption pay is available to a self-employed parent in the same way that ­maternity allowance is available for self-employed new mums would promote an equal and fair society inclusive of all routes to parenthood.

“A parent taking statutory leave regardless of it being adoption or ­maternity should be both recognised and supported fairly.

“Expecting self-employed parents to take unpaid adoption leave whilst supporting their child during a critical transitional period is unfair. This current policy is not inclusive of adoptive families and to many, reads as an act of discrimination.”

The petition urges the ­Government to introduce an adoption allowance comparable with the maternity ­allowance for the self-employed.

KUMAMOTO – In a nationwide first, a hospital in Kumamoto said Friday that it plans to submit a birth notification of a baby who was born under a confidentiality agreement in December without including the mother’s name.

The mother, who is under 20 years old, gave birth to the baby at Jikei Hospital but declined to publicly disclose her identity.

The woman, who had been unable to tell her family about her pregnancy, left the hospital a month ago saying that she cannot raise the baby by herself, hospital officials said.

She continues to seek a family that can adopt her baby, the officials said. She believes that the baby will be better off if cared for by adoptive parents who pass strict screenings, they said.

The woman wishes for her identity to be disclosed to the baby when the child becomes an adult, the hospital officials said. Earlier this month, the baby was transferred from the hospital to a nursery.

The former executive director of an Ohio-based international adoption agency pleaded guilty today in the Northern District of Ohio to defrauding the U.S. and Polish authorities in connection with the adoption of a Polish child.

According to court documents, Margaret Cole, 74, of Strongsville, Ohio, admitted to conspiring with Debra Parris and others to deceive authorities regarding the adoption of a child from Poland. When Cole learned that clients of the adoption agency determined they could not care for one of the two Polish children they were set to adopt, Cole and her co-conspirators took steps to transfer the Polish child to Parris’s relatives, who were not eligible for intercountry adoption.

Cole, Parris and others agreed to defraud U.S. authorities to conceal their improper transfer of the Polish child. Following the adoption, the child was injured and hospitalized while living with Parris’s relatives. Thereafter, Cole made a false statement to the Polish authority responsible for intercountry adoptions about the transfer of the child that, among other things, concealed the role of Cole and others in arranging the transfer of the child to Parris’s relatives.

Cole pleaded guilty to conspiracy to defraud the United States and making a false statement to a Polish authority. She is scheduled to be sentenced on May 27. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Co-defendant Debra Parris previously pleaded guilty to conspiracy to defraud the United States in connection with the Poland scheme, as well as conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and to commit visa fraud in connection with a scheme to corruptly and fraudulently procure adoptions of children from Uganda through bribes paid to Ugandan officials. Robin Longoria also previously pleaded guilty to conspiracy to violate the FCPA and to commit visa fraud and wire fraud in connection with the Ugandan scheme. Co-defendant Dorah Mirembe, who is charged in connection with the Ugandan scheme, remains at large.

KUMAMOTO – In a nationwide first, a hospital in Kumamoto said Friday that it plans to submit a birth notification of a baby who was born under a confidentiality agreement in December without including the mother’s name.

The mother, who is under 20 years old, gave birth to the baby at Jikei Hospital but declined to publicly disclose her identity.

The woman, who had been unable to tell her family about her pregnancy, left the hospital a month ago saying that she cannot raise the baby by herself, hospital officials said.

She continues to seek a family that can adopt her baby, the officials said. She believes that the baby will be better off if cared for by adoptive parents who pass strict screenings, they said.

The woman wishes for her identity to be disclosed to the baby when the child becomes an adult, the hospital officials said. Earlier this month, the baby was transferred from the hospital to a nursery.

There is a need for more people to adopt Danish children, and new rules must do something about this.

From Tuesday, those who want to adopt a child can therefore both sign up for a list with children from abroad and one with children here from Denmark.

This has not been the case so far, where you could only sign up for one of the lists. The hope is that the change will make more people sign up to adopt Danish children.

In recent years, the number of applicants to adopt a Danish child has decreased, at the same time as there has been an increase in the number of children released for adoption in Denmark.

The lack of adoptive parents for Danish children has become a challenge, says chairman of the Adoption Board Thomas Lohse.

Why did we choose this campaign?

We launched our Safe, Secure and Thriving Campaign to highlight the need for more robust post-placement support for children placed with carers overseas. Currently, we do not know the total number of children being placed overseas, which countries they are being placed in, what orders are being used or how many are successful or eventually breakdown.

There is a huge lack of large scale data about the outcomes of children placed overseas. Without it, we don’t know if support for overseas kinship placements is on par with what a child would experience in the UK. Location, borders or nationality should never be a barrier to adequate post-placement support.

Without proper governmental monitoring and guidance in place, children who are already vulnerable can be put at further risk of neglect, abuse, exploitation, or forced to take dangerous journeys back to the UK. Even in these cases, a local authority can refuse responsibility for a child because of the cross-border nature of their placement.

This campaign is calling for more accountability and transparency within the care system. We are working with the Department for Education, encouraging them to publish and analyse the numbers of children being placed across borders and ensure post-placement planning and support. At a local government level, CFAB are offering our services and raising awareness of their statutory duties to children placed across borders. International placements are hugely positive, often resulting in family reunification and preventing a child going into foster care – but the right support systems must be in place to prevent a placement breakdown that can leave a child even more vulnerable. We want to ensure that no child is put at risk, either here in the UK or overseas.

Briefing Note Surrogacy, especially through international arrangements, is increasingly used as a method of family formation around the world. Although there are no precise global figures on how many children have been born through surrogacy, the development of assisted reproductive technology (ART), changes in social norms and the trend for having children later are leading to more children being born through surrogacy. Children born through surrogacy have the same rights as all children under the United Nations Convention on the Rights of the Child (CRC). Regardless of individual State positions on surrogacy, all States have a duty to protect the human rights of all children born through surrogacy without discrimination, including ensuring appropriate legal and regulatory frameworks exist at the national level to protect and promote their rights. This Briefing Note is intended for use by legislators, decision-makers, policymakers and practitioners in all States where surrogacy issues require attention. Main challenges for children born through surrogacy To date, no internationally agreed definition of the different forms of surrogacy exists. In some instances, surrogacy occurs in ways that protect, respect and uphold, the human rights of children born through surrogacy. However, currently, international human rights law does not provide safeguards specifically focusing on domestic surrogacy and International Surrogacy Arrangements (ISAs), which places children born through surrogacy at risk. Moreover, very few States have domestic legal and policy frameworks that provide safeguards for the rights of children in ISAs and, in some instances, domestic surrogacy. The Concluding Observations and Recommendations of the CRC Committee, the thematic reports on children and surrogacy of the UN Special Rapporteur on sale and sexual exploitation of children, as well as the Verona Principles, provide guidance on protecting the rights of children born through surrogacy. Children born through surrogacy, especially ISAs, are at risk of multiple human rights violations – particularly, their right to an identity, including name, nationality, family relations and access to origins; the right to the enjoyment of the highest attainable standard of health; and the right to not be sold [the latter also stated in the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC)]. Decisions may be made by adults in surrogacy situations which are discriminatory based on the child’s disability and/or gender, and which are contrary to the child’s best interests as the paramount consideration. Given the predominantly commercial nature of many surrogacy arrangements, children born through surrogacy are at risk of being sold and/or exploited. Specific concerns are raised in this regard in ISAs and in surrogacy situations in which parentage is established solely on the basis of private arrangements. Confidence in the integrity of the circumstances of their surrogacy arrangement is crucial to uphold the child’s rights. The human rights of surrogate mothers, in particular the protection of girls, should be protected by preventing the potential for exploitation in surrogacy arrangements – for example, through coercion and a lack of informed consent of all parties. 2 February 2022 During a surrogacy arrangement, the rights of children are at risk in the following ways: Establishing and preserving identity can be difficult or impossible for children born through surrogacy. The child’s rights under Articles 7 and 8 of the CRC – which protect the child’s rights to be registered at birth, to preserve their identity, and to re-establish their identity if they have been illegally deprived of some or all of its elements – can be negatively impacted by decisions made about the child in surrogacy situations. Decisions about whether to preserve information relevant to a child’s identity can have a lifetime impact on the child, and future generations, in several ways. Knowing one’s origins is fundamental to the child’s physical, psychological, cultural and spiritual development. Having one’s own identity is also a gateway to the enjoyment of the child’s other fundamental rights, such as those related to protection, health, education, and the maintenance of family ties. Persons and organisations facilitating and/or undertaking surrogacy are not always aware of the importance of collecting, storing, and preserving identity information of children born through surrogacy, so the child can know their origins. In the absence of systems to preserve the child’s identity rights, restoration of the child’s identity may be impossible; particularly in circumstances where there is donor and/or surrogate anonymity. This also leads to challenges in birth registration and certification, as only a few civil registration systems are set up to record identity information related to family relations in surrogacy and other forms of assisted reproductive technology. Legal parentage in surrogacy raises challenges to the child’s rights. Although it is in the best interests of children to have legal parentage established as soon as possible after birth, the integrity of a child’s legal parentage in surrogacy needs to be protected through minimum standards. These include, for example, pre-surrogacy safeguards, best interest determinations (BID), consents of all parties to the arrangement, and protecting the child’s right to access their origins. Establishment or transfer of legal parentage cannot be linked to remuneration or other considerations, and the rights of the child should not be sacrificed to create legal certainty in parentage prior to birth, including in the event of unforeseen developments in a surrogacy arrangement. Such developments may include those related to uncertainty created by emergency situations and/or changes in the circumstances, or wishes, of the parties to the surrogacy arrangement. Children are at greater risk of being sold in commercial surrogacy arrangements. Sale and trafficking of children born through surrogacy is occurring, especially in ISAs, due to a lack of protective safeguards being implemented by States. A legally binding contractual relationship between the surrogate mother and the intending parent(s) established pre-birth, in which the transfer of the child would be made conditional upon payment, would constitute the sale of a child. It can also lead to incorrect information being included in civil registration systems and falsification of identity information. The financial aspects of surrogacy arrangements often lack clarity, suggesting that they go beyond mere compensation for surrogacy-related expenses, including in purported “altruistic” surrogacy arrangements, amounting to the sale of children under Article 2 of the OPSC. The identity and family relations of a child cannot be for sale. Children born through surrogacy can be at risk of statelessness. This is especially prevalent in ISAs when children are born in States that do not recognise the child as a national, nor do any other States. This may occur in situations where the intending parents are nationals of, or reside in, States that prohibit surrogacy and travel to a State that allows surrogacy arrangements. This contravenes State obligations under Articles 7 and 8 of the CRC and the State’s duty to prevent statelessness. It follows that States that permit surrogacy should limit access to surrogacy solely to intending parents from other States which also permit surrogacy. 3 February 2022 Recommendations for protecting children’s rights in surrogacy arrangements States Parties to the CRC and the OPSC, should take the following actions to protect the rights of the child in in all types of surrogacy arrangements by ensuring that: ▪ Civil registration and vital statistics (CRVS) systems include and preserve identity information relating to each child born through surrogacy. Children’s access to identity information should be facilitated in accordance with the age and maturity of the child. This will give children the opportunity to access information concerning their identity and origins and will support the child’s enjoyment of other rights. Specifically, the identity of surrogate mothers and donor(s) should be known. An agreement to share their identity information with children born as a result of a surrogacy arrangement should be obtained prior to the arrangement being entered into. The child’s right to identity can be further supported by openness in surrogacy arrangements. ▪ Timely and disaggregated data on children born through surrogacy are collected by States. CRVS systems should be set up to collect, store and disseminate such data as part of their vital statistics reports. ▪ National legislation and regulation include a prohibition of the sale and trafficking of children as outlined in OPSC and its Guidelines, ensuring this extends to the surrogacy context. Contractual provisions purporting to determine definitively legal parentage or parental responsibility pre-birth should not be enforceable. States should guard against the falsification of identity information in surrogacy and safeguard the appropriate recording of identity information by the civil registrar. ▪ Intermediaries in surrogacy are prohibited from undertaking any activities that may constitute or lead to the sale, trafficking, and/or any other forms of exploitation of children and other persons. States that permit surrogacy should ensure that intermediaries are regulated and subject to national oversight. ▪ A post-birth best interest determination (BID) is conducted in any surrogacy arrangement when pre-surrogacy evaluations lack sufficient rigor, the surrogate mother and/or intending parent(s) dispute legal parentage, the transfer of legal parentage is considered, or unforeseen developments arise. The best interests of the child must be the paramount consideration in decision-making regarding children born through surrogacy arrangements. The BID should consider the child’s full range of rights under the CRC and should ultimately determine legal parentage and parental responsibility, taking into account any pre-surrogacy safeguards. ▪ Children born through surrogacy can enjoy their rights from birth. States that permit surrogacy should prohibit ISAs involving foreign intending parents from States that prohibit such arrangements. ▪ Children are not discriminated against or abandoned on grounds of disability in those States where surrogacy is sought and practiced. These practices are based on stigma and prejudice and contribute to discriminatory attitudes towards children with disabilities. ▪ Mechanisms are in place to prevent any child born through surrogacy being stateless. Any child born through a surrogacy arrangement shall be granted a nationality from birth, as part of their right to identity.