The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most of the countries world over , the woman giving birth to a child is considered as the Child's legal mother. However, in very few countries, the Intended Parents are be recognized as the legal parents from birth by the virtue of the fact that the Surrogate has contracted to give the birth of the Child for the commissioned Parents. India is one country amongst the few, which recognize the Intended/ Commissioning Parent/s as the legal parents.
In India, all three types of surrogacy are permitted as per law-
Yes, commercial surrogacy has been legal in India since 2002. But it’s still unregulated in our country, although a draft surrogacy bill 2016 is being finalised by the government.
The Indian Council of Medical Research (ICMR) has set ‘national guidelines’ to regulate surrogacy. It lays down that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.
Surrogacy arrangement will continue to be governed by a contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear the child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
A surrogacy arrangement should provide for financial support for the surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child, which is resorted to if biological (natural) parents and adoptive parents are different.
Legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
Right to privacy of donor as well as surrogate mother should be protected.
Sex-selective surrogacy should be prohibited.
Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The foreign couple should be duly married and the marriage should have sustained at least for two years at the time of commissioning of surrogacy.
They should enclose a letter from the Embassy of the foreign country in India or the Foreign Ministry of the country with the application stating clearly that: the country recognizes surrogacy and the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.
The couple should furnish an undertaking that they would take care of the child/children born through surrogacy.
The treatment should be done only at one of the registered ART Clinics recognized by ICMR.
The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.
The FRRO/FRO concerned may grant exit to the child/children born through commissioning of surrogacy, subject to the following:-
Indian government had recently issued a new rules barring foreign gay couples and single people from using surrogate mothers to become parents. This has drawn sharp criticism from gay rights advocates and fertility clinics.
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