The foremost concern of the Intended Parents embarking on surrogacy is, “How do I take my child back to my country?” 

This issue has gained major importance, and may be is one of the main reasons as to why Intended Parents choose India as the destination for surrogacy. The laws of various countries on surrogacy vary differently and therefore every national is placed on a very different footing.

European states such as the UK, Italy and few others have been dealing with surrogacy in a conservative manner, thus not making available the full benefits which could otherwise be derived out of assisted reproduction. The legal position of these countries is that the surrogate, who delivers the baby, shall be regarded the actual mother of the child, and her name be entered in the birth certificate of the baby. The Intended Parents (or the Genetic Parents) are required to take in adoption from the surrogate and her spouse. These laws do not give surrogacy the legal sanctity of ‘alternative form of reproduction’ but merely views them as an addition to adoption.

On the other hand, the American approach to surrogacy is completely liberal. Commercial surrogacy is an accepted form of Assisted Reproductive Techniques. The legal issues for American Couple coming down to India are far simpler compared to the European Nations. But again, a large number of American parents have come down to India, mainly because; the scientific improvements are kept at pedestal, which is not commercially reachable by the common man.

APPLICATION OF INDIAN LAWS

The application of the Indian Laws for the Intended Parents from abroad is their most worrying element. When the Intended Parents come down to India for surrogacy, the scenario is completely different and gains major importance.

The applicability of the Indian Laws is the same irrespective of the nationality of the intended parents. Laws of the respective of the countries play a role only at the stage when the intended parents attempt to take the child to their nations. But in most cases, for the purpose of determining of the nationality of child, Indian Laws are of prime importance. 

The consulate of the country of Intended Parent has to be consulted before we arrive at a decision to take up the procedures in India. For this purpose, effective communication and representation at the Embassy gains prime importance. 

SINGLE PARENTING AND SAME SEX PARENTING

With regard to gay/lesbian parenting and single parenting, the European laws are very restricting. Most of those intended parents, take up the procedure as single parents in India, and then to take the baby back to their home country. And in these cases also, the Consulate of the country in India concerned has to be consulted and informed.

DETERMINATION OF LEGAL POSITION-IMPORTANCE

In India, when a child is born using a surrogate, the Birth Certificate shall bear the name of the genetic parents, helping the Intended Parents take their child to their home country. And thus, before embarking on surrogacy, the Intended Parents must have complete knowledge about the laws applicable in this regard. Such knowledge gathered beforehand helps in proper decision making. This also helps cut down the delay that arises after the birth of the surrogate child. Hence, the intended parents should consider such factors before making the decision as to what country to take up surrogacy.

 The following is the extract from the “Guidelines for Accreditation, Supervision and Regulation of Art Clinics in India, 2005”:

3.10.1              A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the records will be maintained in the clinic) that the child is theirs.

3.10.2              Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible/undesirable to carry a baby to term. 

3.10.3              Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy. Documentary evidence of the financial arrangement for surrogacy must be available. The ART centre should not be involved in this monetary aspect. 

3.10.4              Advertisements regarding surrogacy should not be made by the ART clinic. The responsibility of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a semen bank. 

3.10.5              A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy. 

3.10.6              A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate. 

3.10.7              A prospective surrogate mother must be tested for HIV and shown to be seronegative for this virus just before embryo transfer. She must also provide a written certificate that (a) she has not had a drug intravenously administered into her through a shared syringe, (b) she has not undergone blood transfusion; and (c) she and her husband (to the best of her/his knowledge) has had no extramarital relationship in the last six months.  (This is to ensure that the person would not come up with symptoms of HIV infection during the period of surrogacy.) The prospective surrogate mother must also declare that she will not use drugs intravenously, and not undergo blood transfusion excepting of blood obtained through a certified blood bank.

 3.10.8              No woman may act as a surrogate more than thrice in her lifetime.

            The surrogacy market in India is now set to boom than ever. One of the main reasons for this is contrastingly, the fall of the world economy. 

            Intended Parents from all over the world who have planned to have a child through surrogacy somewhere during this time have been taken by shock with the falling markets. The savings set aside for achieving the dreams of motherhood, is now pressed upon for other needs. This being the case, ambitious Intended Parents look for India as a means for their dreams. 

            The global markets have crashed and now people are looking for cost effective alternatives than surrogacy in the developed countries. For couple from all over the world, India figures as one of the best choices in terms of reproductive tourism. The United States Laws are most accommodative for commercial surrogacy. The procedure for taking the surrogate child born from India to the United States is apparently simple. This being the position, intended parents from United States traveling to India for surrogacy is surely set to boom.

Finally the ISLC blog is now on. The site is under development and the content is being uploaded. As far as this blog goes, I think it is for me to fill the content.

This blog shall contain the most important developments taking place in the world of Surrogacy. More importantly, we shall deal the legal aspects of surrogacy in India, the complexities and the undiscussed problems that Intended Parents face.

Watch out this space for interesting and useful updates on the Indian Surrogacy Industry. Once again, Welcome.