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Last week, news surfaced of an unusual case involving a woman’s divorce and a ruling on the child that was conceived via surrogacy during their marriage. The news reports describe how an Indian couple living in the United Arab Emirates (UAE) had been married for 15 years but had been unable to conceive. In most cases, a couple embarks on a journey to have a child together, with parties agreeing. But in this case, the husband traveled to India and underwent surrogacy procedures … without the wife’s knowledge or consent. (Not a great move for a healthy marriage!)
Upon learning of her husband’s actions, the wife, unsurprisingly, sought a divorce. However, this wasn’t your typical American no-fault divorce for irreconcilable differences. Instead, according to her testimony, the husband would only agree to a divorce if she signed consent forms for the surrogacy procedures that were already underway. Under duress, she signed. After the birth of the child, the husband took the couple’s valuables–and the child–and moved to India. The husband then informed the wife that, oh, by the way, her name was on the birth certificate as the mother of the child, and she was legally recognized as the mother of the child.
Still in the UAE, the wife also sought non-recognition of the parent-child relationship, as well as the divorce proceedings, in the United Arab Emirates.
The UAE and Assisted Reproductive Technology Laws
In April 2019, the United Arab Emirates enacted “draft” laws that outlawed surrogacy, as well as egg and sperm donation. While I’m not familiar with the UAE legal system and where the draft law stands in terms of enforceability, it’s clear that the UAE means business. Penalties for defying the prohibition include incarceration for up to five years, along with heavy fines.
Dr. Hassan Elhais, a UAE legal consultant for the wife, explained to me that this was the first time a UAE court had made a ruling on surrogacy. Dr. Elhais explained that while it is widely understood that surrogacy is not permitted in the country no court had previously issued a ruling on the question of parentage involving a surrogate-born child. Here, the court ruled in the wife’s favor, with a broad ruling likely to have implications for future intended parents. The court held that surrogacy is not determinative of parentage and also found that, therefore, the wife was not a legal parent of the child. But it went even further, holding that even if the child had been genetically related to the wife, she still would not be found a legal parent of the child under UAE law.
The court had ordered the husband to produce the child for DNA testing. However, the husband, now in India, declined. Dr. Elhais explained that even without the DNA evidence proving the lack of genetic connection, it was not possible for his client to be the genetic parent of the child. She never underwent the procedures (such as ova retrieval) that would have been necessary for her to be genetically related to a surrogate-born child.
The Other Side
In contrast to the wife’s allegations that the surrogacy was without her consent, the husband argued that his wife had consented initially, and only changed her mind as the due date of the child grew closer. He argued that surrogacy was legal in India, and that the UAE should defer to Indian law on surrogacy in the matter — which would find the wife the legal parent of the child. UAE courts do, at times, apply foreign law, but the court refused to do so in this case based on the country’s stance against surrogacy.
This Case Sounds A Little Familiar
The facts of this case have certain parallels to the infamous 2016 Sherri Shepherd surrogacy situation in the United States. There, actress Sherri Shepherd (known for The View, and as a recent surprise celebrity guest on The Masked Singer, if anyone happened to watched that) and her then-new husband Lamar Sally entered into agreements for a woman in Pennsylvania to carry a child for them. The child was genetically related to Sally and an anonymous egg donor.
During the pregnancy, Shepherd and Sally’s relationship crumbled, and Shepherd later claimed that she had been fraudulently induced to enter into the surrogacy arrangement. She argued that she should not be found the legal parent of the child. A Pennsylvania Court of Appeals ruled against Shepherd, finding her legally and financially responsible for the child.
Of course, if Shepherd’s dispute had been brought in the UAE, the ruling very likely would have gone the other direction. Dr. Elhais did point out that, similar to the United States, the UAE courts prioritize the best interests of the child. In his client’s case, the court did not consider it in the child’s best interest to find the wife a legal parent to the child. With different facts — such as a surrogacy case where the intended parents both wish to parent the child — a UAE court may face a trickier job of balancing the surrogacy prohibition while also prioritizing the child’s best interests.
For now, though, the lesson may be to avoid surrogacy arrangements if you live or plan to live in the UAE.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.