All you need to know about Surrogacy Law in India

April 07, 2024 हिंदी में पढ़ें

Table of Contents
  1. Is Surrogacy legal in India?
  2. What are the Guidelines laid down by the Indian Council of Medical Research on Surrogacy?
  3. What are the guidelines for foreign nationals?
  4. What is the new update on Foreign nationals?
  5. How can a Lawyer help you?

Surrogacy is defined as a woman carrying a pregnancy and giving birth to a baby to another woman. This arrangement can be voluntary and gratuitous, as well as, paid as any commercial transaction according to the agreement between the couple and the woman who agrees to bear the child.

In India, all three types of surrogacy are permitted as per law-

  • Voluntarily

  • Gratuitous

  • Monetary Consideration

Is Surrogacy legal in India?

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 finalized by the government.

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What are the Guidelines laid down by the Indian Council of Medical Research on Surrogacy?

The Indian Council of Medical Research (ICMR) has set & lsquo 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 the consent of the 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 a 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 the 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 relationships. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoption, 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.

  • The legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even a declaration of guardian.

  • The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

  • The right to privacy of donors as well as surrogate mothers should be protected.

  • Sex-selective surrogacy should be prohibited.

  • Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

What are the guidelines for foreign nationals?

  • 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 the commissioning of surrogacy, subject to the following:-

  • (a)The OCI/PIO Cardholder had obtained the requisite prior permission from the FRRO/FRO concerned for commissioning surrogacy as mentioned above.

  • (b) The OCI/PIO Cardholder is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the OCI/PIO Cardholder and the liabilities towards the Indian surrogate mother have been fully discharged as per the Agreement.

  • (c) A copy of the Birth Certificate (s) of the surrogate child/children, along with photocopies of the passport and OCI/PIO card of the OCI/PIO cardholder, will have to be submitted by the OCI/PIO cardholder to the FRRO/FRO for the record.

  • (d)The wife of a foreign national or OCI/PIO cardholder (who does not have an OCI/PIO card), who is not involved with the treatment in any way, may not require a specific Medical Visa.

What is the new update on Foreign nationals?

Indian government had recently issued 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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How can a Lawyer help you?

A lawyer experienced in the field of law relating to medical negligence is essential to further your interests in the quest for justice. A lawyer can best advise you on the merits of your case and the best plan of action to adopt moving forward. If you need clarity on surrogacy laws, or if you have been wronged, you must approach a lawyer. A lawyer will not only help you gain a proper understanding of your rights and remedies available in law but also manage the documentation required in this regard to best put forward your case. A lawyer will prepare your matter, based on the facts and circumstances of your particular case and will also represent and argue on your behalf. He/She will be able to tell you if you should go for a civil remedy or file a criminal case, or both. A lawyer can also guide you and defend you, in case you are a doctor and a case of medical negligence has been filed against you. Thus, the first step that you should take is to consult a lawyer and get legal advice so that you can be guided on the path to justice. You can also use LawRato's Ask a Free Question service to get free advice on your legal issue from expert lawyers.

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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