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Baby girl caught in between surrogacy and adoption laws

26 August 2008
Appeared in BioNews 472

A baby born to an Indian surrogate mother for a Japanese couple has found herself in the middle of a legal battle over her nationality, the legal status of her parents and immigration rights. Moving towards a closure of the saga, the Indian Supreme Court last week granted custody to the girl's grandmother, Emiko Yamada.

Manyi Yamada, little over one month old, was born after donated eggs were fertilised using the sperm of Ikufum Yamada, of Japanese nationality, which were subsequently implanted into the womb of an Indian surrogate mother. Since the pregnancy the Japanese couple have divorced and the wife has withdrawn her consent to adopt the child. It is understood Mr Yamada still wants the child, although the legal implications in Indian law are unclear and as him being a single-father it proved unlikely his application for adoption would be recognised. Satya, an Indian child welfare charity, issued a petition to the courts to claim custody of Manyi, which was unsuccessful. 'They have violated Indian laws by not signing a surrogacy agreement and taking custody of a child abandoned by its mother,' said Satya's chairman Sanjay Agarwal.

The Japanese Justice Minister, Okiharu Yasuoka, has indicated to reporters that he would consider granting Manyi a visa but that the legality of the birth was something that would need to be addressed in the near future. 'Whether to permit surrogate pregnancy is a matter to be discussed by respective institutions,' he said, adding that, 'The ministry will study the possibilities under the law out of consideration for the child's future.'
Japan's first surrogate birth, announced in 2001, led to the Health Ministry calling for an immediate ban. Although this was blocked, the Society of Obstetrics and Gynaecology successfully managed to prohibit surrogate births in 2003, citing the mental and physical burden to the surrogate mother and the fear that surrogacy could confuse familial relationships.

Clinics are permitted to perform surrogacy procedures, although few actually do. The Health Ministry does not keep official statistics on the number of surrogate births in the country but it is believed to be low. India legalised surrogacy in 2002, although many critics cite the lack of regulation including the absence of a ban on paying surrogates as potentially exploiting poor women. CNN reports that surrogacy arrangements in India can attract surrogate fees of between $12,000 to $30,000, with the industry being worth around $445m.

As the Manyi's future was being decided by the courts, news in Japan that a Japanese woman of 61 years of age acted as a surrogate mother for her daughter has further ignited the debate in the country. The woman is believed to be the oldest woman in Japan to give birth. The procedure was performed at the Suwa Maternity Clinic by Yahiro Netsu, a long standing supporter of surrogacy procedures. In a statement issued to the press, it said: 'The clinic hopes that Japan will hold forward-looking discussions on surrogate births and that it will take place in Japan without abuses.'

Japan 61-yr-old surrogate mum gives birth: clinic
Reuters |  20 August 2008
Japanese woman gives birth to her own grandchild
The Times |  21 August 2008
Japan hints at visa for India surrogacy baby
AFP |  13 August 2008
Surrogate baby stuck in legal limbo
CNN |  12 August 2008
Welfare group tries to get custody of India surrogate baby
AFP |  13 August 2008
Woman gives birth to her grandchild
Associated Press |  20 August 2008
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