Nepal Court Orders Halt of Surrogate Pregnancies, Barring Future Israeli Hopefuls

Injunction isn’t expected to affect the dozens of Israelis who are currently in the midst of the surrogacy process in Nepal.

Ofer Vaknin

Nepal’s Supreme Court has issued an injunction barring surrogate pregnancies for foreigners until it rules on a petition against the Nepali government’s decision to permit them.

The injunction, issued earlier this week, isn’t expected to affect the dozens of Israelis who are currently in the midst of the surrogacy process in Nepal. But until the court rules otherwise, no new foreigners will be able to start the process.

With Nepal having joined India and Thailand, at least temporarily, in banning foreigners from performing surrogacies, the United States is the only country where a same-sex couple from another country can arrange a surrogate pregnancy. But in America, the process costs $100,000 to $150,000 – two to three times what it did in east Asia.

Israelis began using Nepal for surrogate pregnancies about two and a half years ago, and the first births took place in early 2014. At the time, surrogacy was completely unregulated in Nepal.

Eight months ago, in December 2014, the government formally authorized surrogate pregnancies for foreigners, while also regulating them. The regulations barred Nepali women from serving as surrogates for foreigners, but allowed women from neighboring India to come to Nepal to work as surrogates.

Israeli agencies that arrange surrogate pregnancies say about 100 babies have so far been born to Israeli parents via surrogacies in Nepal. In addition, some 90 surrogate mothers in Nepal are currently carrying Israeli babies.

According to Nepali media reports, the petition to the court demanded that paid surrogacy be completely outlawed, arguing that surrogacy constitutes exploitation of poor women. The petition also charged that only a small fraction of the fee paid by the parents actually reaches the surrogate mothers; most goes to the agencies that arrange the surrogacies and the hospitals. Allowing poverty-stricken, lower-class women with no work and no suitable knowledge to be forced into offering this service is irresponsible, the petition asserted.

The Supreme Court ordered the government to respond to the petition within 15 days. According to a translation of the decision sent to Israeli surrogacy agencies, the government was asked to reply to a long list of questions, mostly related to the rights of the parties involved. Inter alia, the court wants to know what rights the future parents have, what steps are taken to ensure the surrogate mother isn’t harmed, what rights and benefits she has, what citizenship the child has, under what conditions the child can be taken to another country, and what responsibilities the surrogacy agencies have.

Attorney Dana Magdassi, owner of the Lotus surrogacy agency, which works in Nepal, said the court’s intervention could actually be beneficial.

“Our attorneys are very optimistic,” she said. “They think the decision asks for good details; it sounds as if the judge truly wants to hear. The questions the judge asks are relevant and legitimate questions – what happens regarding the child’s rights, the woman’s rights; who makes sure the woman is paid.”

Thus if the court ultimately rejects the petition, Magdassi said, its ruling could expand on the government’s decision in positive ways.

“At the minute, we won’t take any new customers until it becomes clear what exactly can be done,” she added. “With regard to impending births, I don’t think this has any significance. You can’t stop births.

“When we did the procedure in India, the moment a decision was made that you needed a medical visa to undergo it in India, they let people who weren’t entitled to medical visas enter India to finish the process for a period of 10 months,” Magdassi continued. “The Indians also understood that it’s impossible to say ‘you can’t enter’; babies are born, but you can’t take them out. Nobody will come and take the children or say these children can’t go back with the parents. I’m optimistic that in the end, the court will reject the petition.”

Doron Mamet, who owns the Tammuz surrogacy agency, which also works in Nepal, rejected the petition’s claim that the surrogate mothers are exploited.

“These are the normal demagogic statements of people who are trying by every means possible to stop surrogacies; they aren’t based on any truth,” he said. “The surrogate mothers receive enormous sums relative to their earning ability in those countries. All the surrogate mothers come of their own free choice, after the agreement with them has been examined in depth.”

Mamet added that with surrogacy opportunities overseas being closed off, it’s vital to pass a proposed surrogacy law that would let same-sex couples and single people use surrogates here in Israel. The law, spearheaded by former Health Minister Yael German (Yesh Atid), passed its first reading in the last Knesset, but hasn’t yet advanced in the current one.

The Foreign Ministry said its embassy in Nepal learned of the court’s decision from the local media but hasn’t yet received the decision itself, and it’s now trying to determine the ruling’s implications.