Surrogate baby in legal limbo
NEW DELHI // A Japanese baby girl born to an Indian surrogate mother is in legal limbo after the couple who had intended to raise her divorced, highlighting the risks of India's unregulated "rent a womb" industry. Manji Yamada, just 12 days old, was conceived using sperm from her father, Ikufumi Yamada, a 45-year-old surgeon from Tokyo, and an egg from an unknown donor.
Mr Yamada's ex-wife, who is not genetically related to Manji, and the surrogate mother have both refused to take custody of her. Mr Yamada still wants to raise Manji, but Indian law does not automatically recognise him as the father and, under a 120-year-old law he is barred from adopting her because he is now an unmarried man. In recent years, India has emerged as an increasingly popular destination for childless foreign couples hoping to have a baby who is related to at least one of them.
Fertility experts say more than 400 women acted as surrogates for foreign couples last year, up from 100 the year before. But while commercial surrogacy is legal in India - unlike in the United Kingdom - there is no additional legislation that makes it clear who the child belongs to, or whose names should be put on the birth certificate. Because the Japanese couple split before the child was born, no names have been written on her birth certificate.
"This was bound to happen given we have no laws to provide for this," said Indira Jaisingh, a lawyer at the Supreme Court in Mumbai, who is providing legal advice to the hospital where Manji is now being cared for. "He may have to adopt her as an Indian child," Ms Jaisingh said. But for that to happen, three Indian couples first have to refuse the child. Manji's plight comes as the Indian government is in the process of drafting legislation to protect the rights of the surrogate mother and future parents. In June, Renuka Chowdhury, India's minister for women and child development, described the current situation as "grey market" and a "free for all".
Some critics - who refer to the practice as "reproductive outsourcing" or "reproductive tourism" - have called for a ban on surrogacy for foreigners all together, saying it leaves poor Indian women vulnerable to exploitation. Doctors - like Nayna Patel, who runs a fertility clinic and a hostel for surrogate mothers in Anand, a city in the western state of Gujarat - have said the situation is win-win for all involved, with women earning up to US$6,500 (Dh23,855) for acting as a surrogate - a small fortune in a country where 900 million people live on less than $2 a day.
But Dr Patel supports the introduction of legislation, saying it would avoid legal tussles such as the one surrounding Manji, whose fate has made headlines in Indian newspapers. "Conceived in Japan, stuck in Jaipur" read the headline of the largest-selling English daily, The Times of India, saying the baby could become the country's "first surrogate orphan" if the problems were not resolved. Manji has been unlucky in other ways, too. Born in the western state of Gujarat, she had to be evacuated to Arya Hospital in Jaipur, Rajasthan, after bomb blasts rocked the state, killing 50 people.
When she arrived at the hospital, she was dehydrated and suffering from septicaemia, said the head of the hospital, Sanjay Arya. "She is doing much better now. A mother gave birth yesterday and she is breastfeeding Manji as well." Manji is also being cared for by her 72-year-old paternal grandmother, who speaks no Hindi or English Mr Yamada and his mother travelled to India for Manji's birth, but he has since had to return to Japan for work.
"My son loves his daughter very much. I shower all my love and affection on this bay. Tears keep rolling down my cheeks all the time," the baby's grandmother told the BBC. Dr Arya now faces the possibility he will become Manji's legal guardian while the courts figure out who has the right to take her home. @Email:email@example.com
Updated: August 6, 2008 04:00 AM