Thought of engaging an independent Surrogacy Lawyer usually crops up when the Commissioning parent have finalized on the clinic and are fixing the dates for taking up the procedures. They contact the clinic asking for the legal details and the clinic assures that the clinic does have a lawyer who shall take care of the interest of the parties. Few clinics also claim that there is no need for a lawyer, as there are not much legal issues in India that requires a lawyer. Being assured by these words, the commissioning parent forget the legal issues and take up the procedures unmindful of the legal complications involved and about who is going to protect their interest on arising of any legal complications. The thoughts raise again only when there is a problem between the clinic and the Intended Parent or when the procedures have been completed without a knowledge as to how to take the child to their respective nation.
NO LAWYER CAN REPRESENT TWO PARTIES
A lawyer can advise or represent only one party. A surrogacy arrangement shall consist of atleast 3 parties, the intended parent, the surrogate and the clinic or the agency. It is logically and practically not possible the same lawyer would be advising more than one party to an agreement. The role of the lawyer in the that case would be that of a mere moderator than that of a solicitor. It also has to be understood that the lawyer would not be able to make justice to any of the parties in that case.
The question which decides the need of independent legal advisor is “Which lawyer will you consult if there arises any legal complication?”
The intended parents come to India with the dream of parenthood, that they can take the surrogate baby to their home land after its birth. But is it not required that the Intended Parents have verified the legal position with regard to taking the child back to their nation?
It is true that India has got no law with regard to surrogacy, but that does not mean that India does not have a law for nationality as well. The legal complications over taking the child to the nation of the IP are many, and have to be address at the earliest time, even before taking up the procedures in India.
For Example, according to the UK Laws, the child born to an Indian Surrogate cannot be directly registered as that of the Intended Parents. There are legal issues in this case, those of paternity and that of nationality of the child. These issues have to be essentially taken care by a “Legal Screening” program by a surrogacy lawyer.
It has to be necessarily understood that surrogacy is arrangement between the parties to it, who are bound by a document called as the “surrogacy agreement”. The surrogacy agreement is the code which governs the role of the parties to the surrogacy agreement. This agreement mentions the role of the surrogate and that of the Intended Parent in proceeding towards surrogacy.
Another important element is that surrogacy agreements in India are not held valid in most of the nations as few of the issues mentioned there is banned by the law of those countries. This would aggravate the issues relating to the Nationality of the child. Therefore it is most important the agreements of an international standard, so that it can be acceptable to the nation of the Intende Parent as well.
SURROGACY ARRANGEMENT AGREEMENT
Surrogacy Arrangement agreement is entered between the Intended Parents and the Clinic which provides the services. This agreement may also called as the “Service Provider agreement.” Remember, this is the most important agreement that has to be entered into by the parties to surrogacy. Though this agreement is not mentioned anywhere in the ICMR Guidelines, without this agreement, you service provider, the clinic or the agency, may claim that they do not have any binding factor. This agreement shall make sure that there is a proper understanding with regard to the dates and also with regard to the payment schedule.
INTEREST PROTECTION OF THE INTENDED PARENTS
The Intended Parents during their stay in India enter into various commitments without realizing the legal importance of the same. It is most important that the they have a lawyer by their side, who can make sure that the necessary legal precautions are made in their interest.