Report No. 228
Motherhood - an enigma
1.12 How surrogacy can lead to an array of legal complexities regarding motherhood was shown by Jaycee B. v. Superior Court, 42 Cal App 4th 718 (1996). A child was born to a surrogate mother using sperm and eggs from anonymous donors because the infertile couple was unable to create their own embryo using the in vitro fertilization techniques.
The couple chose to use anonymous donors rather than asking the surrogate to use her own eggs because of the Baby M case in New Jersey in which the surrogate had eventually refused to hand over the baby saying that she was its biological mother and her right to raise the child pre-empted the commissioning parents'. The child thus had five people who could lay claim to parenthood - a genetic mother, a commissioning mother, a surrogate mother, a genetic father and a 5 42 Cal.App.4Th 718 (1996) 13commissioning father.
One month prior to the birth of the baby Jaycee the intended parents John and Luanne separated and John sought to rescind his obligations under the surrogacy contract so as to avoid having to pay childsupport for Jaycee. Luanne sought both custody and support from her exhusband. The court battle continued and for three years Jaycee did not have a legal parent. A Californian court granted temporary custody of the baby Jaycee to Luanne and ordered John to pay for child-support.
1.13 Different countries have taken different stands to address this issue. In UK, the surrogate mother is the legal mother, vide section 27(1) of the Human Fertilisation and Embryology Act 1990. Section 30 of the said Act at the same time provides that if the surrogate mother consents to the child to be treated as the child of the commissioning parents the court may make a parental order to that effect. This section also prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child.
1.14 In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty similar to that of India.
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