Surrogacy in India » indian surrogacy law

Times of India writes on Surrogacy

Hari Ramasubramanian — Tue, 18 May 2010 05:42:05 +0000

Times of India writes on Surrogacy in India and also discusses the work handled by Indian Surrogacy Law Centre. The need for risk assessment for international intended parents who come down to India has been the focus. The link to the article is http://timesofindia.indiatimes.com/India/Surrogacy-goes-into-labour-/articleshow/5934825.cms.

Law Commission Writes on Surrogacy

Hari Ramasubramanian — Mon, 10 Aug 2009 12:23:51 +0000

I have been forced to ban myself off the blog for a few days due to a very hectic work schedule and too much travel. However, here I am back a wonderful news that’s going to bring a smile on anyone’s face who’s reading this.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear 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.

[2] A surrogacy arrangement should provide for financial support for 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.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] 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.

[5] 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 declaration of guardian.

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

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.

When is the right time for having a Surrogacy Agreement with the Surrogate?

Hari Ramasubramanian — Thu, 14 May 2009 14:08:05 +0000

This is one of the most frequent questions I answer during my meetings with the Intended Parents. Though the answer seems quite simple, the consequence of missing the right time to sign a surrogacy contract is quite a serious problem to the whole surrogacy program. Indian Surrogacy Law Centre recommends the right time to enter into a surrogacy contract with the surrogate is when the following four aspects have been finalized,

(a) the choice over the surrogate mother

(b) the choice over the Clinic

(d) The dates for commencing the procedures at the hospital has been fixed.

Once all the above factors have been determined, it is the right time for entering into a surrogacy agreement. The surrogate should have a clear understanding of the agreement and there should be also some evidence for the same.

Importance of the time factor:

The date of signing of the surrogacy contract plays an important role is assessing the mind of the parties to the contract. It is important that the surrogate enters into the contract before the taking up of the medical procedures. The reason is that the medical procedures itself is a result of the contract entered between the parties, and this order of events cannot be rearranged. There have been cases where clinics do not stress on the need for signing of an appropriate agreement with the surrogate before carrying out the procedures. However, this practice does not serve any purpose.

More importantly, the effect of not signing of a surrogacy agreement at an appropriate time has an adverse inference over the agreement. In such cases, the obvious question the Court poses to a person who relies on the agreement is as to why the agreement was not entered with the surrogate before she had taken up the medical procedures.

Therefore it is important to have the surrogacy agreement entered by the parties before proceeding with the medical procedures.

Legal Screening for Intended Parents

Hari Ramasubramanian — Sat, 14 Mar 2009 16:05:04 +0000

Legal Screening is one of the elemental steps towards International Surrogacy and this post explains on the reasoning and need of Legal Screening for Intended Parents.

What is Legal Screening?

Legal Screening is a risk factor assessment mechanism for the intended parents who are looking for taking up surrogacy in India. It provides Indian and International intended parents the essential legal elements for choosing surrogacy in India, also giving them an insight of legal issues that they might encounter during and after the process of surrogacy.

Why Legal Screening?

Legal Screening is a great step forward towards surrogacy. The Intended Parents from all over the world come down to India for surrogacy, with the mind of taking back the child to their homeland. Legal Screening helps them assess whether it can be done and how to do this. Taking up legal screening at the earliest point of time, even before taking up the procedures saves a lot of time after the delivery of the child.

Who does Legal Screening help?

Every Indian and International Intended Parent is advised to take up legal screening. The Indian Council for Medical Research in it ‘National guidelines for accreditation, supervision and regulation of ART clinics in India’ has pressed attention for the Intended Parents being informed about the medical and legal aspects of surrogacy before taking up the procedures. The legal aspects are not being explained to Intended Parents, thus the Intended Parents do feel the brunt of it after the birth of the child.

More importantly, Legal Screening helps Same Sex Couple and Single Parents to make sure of the laws of their land and that of the India on how to take the child to their nation. The completion of the medical procedures does not entitle the Intended Parents to take their child to their nation. The laws of nationality have to be complied.

What is the connection between Legal Screening and the Surrogacy Agreement?

Surrogacy Agreement is a step that comes after the process of Legal Screening. In fact, Legal Screening is the first leap to surrogacy. The Legal Screening clears issues on taking up of the surrogacy procedure and how to take the child to the nation of the Intended Parent. It also helps in finding of the right surrogate. It would endeavor to serve as the most comprehensive clearing system for taking up surrogacy.