After the Kalaiselvi case decided by the Madras High Court, we have the Kerala High Court presented with a similar case this time.

“Whether an commissioning mother is entitled to maternity leave after the birth of the child?”

This is the question that comes before the Kerala High Court on 29/10/2014. Geetha, an employee of the Kerala Livestock Development Board had taken up a surrogacy arrangement as a result of which she had been blessed with a boy on June 18th 2014. When she had made an application for maternity leave with her employer, the same was refused stating that the rules prescribed does not make provision for a child born through surrogacy. The core basis for refusal of the maternity leave for Geetha seems to be fact that she is not the biological mother of the child (i.e.) she did not gestate the child.

As can be seen, the importance of maternity leave is being hugely undermined by the governmental corporations. Maternity break is the period when the mother and the child would be able to bond with love care and affection. State agencies should be more careful when rejecting an application for something relating to a basic human requirement to bond with a child.

The court transcripts are not available and I am not aware of the arguments that went forth in the case. I shall update of any further information that I may come across.

I am coming across news-reports telling me that the Winter Session of the Parliament might actually be passing the Assisted Reproductive Technology Bill, 2013 (ART Bill). The Assisted Reproductive Technology Bill is pending for more than 4 years now. The ART Bill has undergone atleast two revisions, but there still seemed several loopholes the last time I read through it. I did not get the idea that I was reading the final draft of the ART Bill and several changes to Bill might be appropriate. I shall certainly try to make a blog-post on the possible improvements to the Bill that would be more practical for the given scenario.

To be frank, I am not convinced of the news report. There have been several instances in the past where the newspapers reported that the Bill was going to be introduced in the Indian Parliament for debate, but nothing actually came out of it.

If India is passing the ART Bill, it could be changing the infertility scenario globally.

Yes, I mean every word of it. After India restricted commercial surrogacy for married couples only, I came across several couples who were not able to afford commercial surrogacy in the US and the same time, did not want to look at a different destination. India had created a niche for itself by being safe and secure as far as commerical surrogacy was concerned. When India disallowed commercial surrogacy for gay couples, it was indeed a big blow for several of them. What I am trying to point out is, Indian Fertility Laws mattered and matters even more now globally.

If India is now coming up with a special legislation, it will matter to a lot of infertile couple around the globe. The fertility laws in India would attract a lot of attention and would have an impact on the way have their family.

India may be the first country to allow commercial surrogacy by way of a legislation

Barring Isreal, I am not sure which other nation has actually passed a law that allows commercial surrogacy. In most nations where legislations allowing surrogacy has been passed, commercial surrogacy has been made illegal. In many conservative states surrogacy arrangements by themselves are considered to be a criminal offence, irrespective of whether it is altruistic or commercial surrogacy. Surrogacy has been subject of political and social criticism in many nations and the Governments have always had a tough time with the laws pertaining to surrogacy.

Given this scenario, if india passes the Assisted Reproductive Technology Bill, India may be first country to actually allow commercial surrogacy arrangements by way of a legislation.

The following issues may be covered in the Assisted Reproductive Technology Bill

  • Age limits for the surrogate mothers
  • Minimum compensation payable to the surrogate mothers in surrogacy arrangements
  • Eligibility criterion for International Couples to take up surrogacy arrangments in India

I hear that the Assisted Reproductive Technology (Regulation) Bill, 2013, has been cleared after rounds of discussions with various ministries and other stakeholders and will be presented before the Union Cabinet soon. Secretary (Health Research) VM Katoch is said to have spoken at a national conference on surrogacy of the same.

I hope that the wait for the Assisted Reproductive Technology Bill is worth it and that the law brings in regulation for the protection of the surrogate mother and the commissioning couples.

 

Ministry of Home Affairs declares that appropriate visa category for Intended Parents for traveling to India for surrogacy is medical surrogacy visa.

I have finally heard from the Ministry of Home Affairs (Foreigners Division) pertaining to RTI Application filed by me dated 10.07.2012 on the surrogacy VISA category. From the reply, I see that the Ministry of Home Affairs had addressed a letter to dated 09.07.2012 bearing File No.25022/74/2011-F-1, laying down the procedure for grant of VISA for foreign nationals, intending to visit India for surrogacy arrangements. Interestingly, the communication has been dated 9th July 2012, just one day prior to the date of my Right to Information Application. However, the notification pertaining to surrogacy has been on the websites of the Indian Embassies for almost six months now.

The following instructions were issued to the Ministry of External Affairs and requested to be circulated to all Indian Missions abroad as per the communication in File No.25022/74/2011-F-1.  It is stated in the reply to RTI Application that the Home Affairs Minister has approved the Guidelines issued by the Ministry of Home Affairs. This is the basis on which the warning about surrogacy arrangements had been published in the websites of the Indian Embassies.

Surrogacy neither allowed or prohibited by Home Ministry

The Ministry of Home Affairs has not issued any guidelines either allowing or prohibiting surrogacy in India.  However, Ministry of Health and Family Welfare is the nodal Ministry in this regard.

Medical Surrogacy VISA requirements

The VISA category required for taking up surrogacy arrangement is medical surrogacy VISA.  A medical surrogacy VISA for surrogacy arrangement could be granted on the fulfillment of the following conditions:

a)    The foreign man and woman are duly married and the marriage should have sustained at least for two years.

b)    A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Medical Surrogacy VISA application stating clearly that (a) the country recognizes surrogacy and (b) 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.

c)     The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.

d)    The treatment should be done only at one of the registered ART clinics recognized by ICMR.  (The list of such clinics will be shared with MEA from time to time)

e)    The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.

If any of the above conditions are not fulfilled, the surrogacy visa application shall be rejected.

Further, before the grant of surrogacy visa, the foreign couple needs to be told that before leaving India for their return journey, ‘Exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indiansurrogate mother have been fully discharged as per the agreement.  A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and surrogacy visa of the foreign parents.

However, the couple may visit India on a tourist VISA for executing the agreement on a reconnaissance trip, but no samples may be given to any clinic during such preliminary visit.

MHA-docs Ministry of Home Affairs on indian surrogacy visaCopy of the Notification issued by Ministry of Home Affairs on Surrogacy VISA 

MHA-docs2 MHA-docs3 MHA-docs4

In summary, a commissioning couple seeking to take up surrogacy in India can sign a surrogacy agreementin a tourist VISA, but cannot provide samples to the clinic when they are in a tourist VISA. Further, the medical VISA would be granted only when the surrogacy agreement is submitted as annexure document along with the application. That means that the couple has to travel twice prior to taking up a surrogacy arrangement. Once for meeting with clinics and signing of the surrogacy agreement; and again for providing samples to the clinic. It certainly seems strange.

An interesting development has taken place in Hong Kong.

Mr. Peter Lee Ka-kit, a resident of Hong Kong had triplets through surrogacy in America. Mr. Peter Lee Ka-kit is son of Mr. Lee Shau-Kee, 18th richest man in the world ranked by the Forbes.

Commercial Surrogacy is banned in China and it is a punishable offence in China irrespective of where the surrogacy arrangement is entered into.  The matter is reportedly referred to the police who might be initiating the first prosecution under the ordinance since its introduction in the year 2000.

The German Couple who had a tiring journey through the Indian Judicial System in a bid to travel back to their homeland with the twin children finally have crossed the first step. The German Government had granted VISA for the children to be brought to Germany. The Central Adoption Resource Agency (CARA) had earlier agreed that it would issue a No Objection Certificate for the adoption of the children. With what can be seen, the children have to be adopted (or something similar) by the German Couple in Germany. The Union of India had given the Exit Permit for the children to be taken to Germany.

The children remain stateless yet. The Union of India had only granted the Exit Permit to the children and not a citizenship. I do not see a change of scenario as far as nationality is concerned. However, the change in attitude of the German Government is seen by issuance of the VISA. The German Couple now have an opportunity to fight for their rights at judicial forums in Germany for the citizenship of the children. The German Government had always remained steadfast to its view that familial ties arising out of a surrogacy agreement cannot be valid in law. German Government was also very precautious that the Jan Balaz’s case should be a precedent for other Germans to take up surrogacy abroad.

The German Couple may be required to adopt the twin children in Germany. This would pave way for the twin children to obtain German Citizenship. However, the Balaz Family has percolated through the first step with the guidance and aid of the Supreme Court of India.

When the appeal was filed before the Supreme Court of India, the court did not have much in its hands as the issue largely involved the policy of two states, Germany and India. Germany and India had conflicting policies with regard to surrogacy.

India was unable to grant citizenship to the twins born through surrogacy. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be Indian Citizens at the time of birth of the child. In the case on hand the children did not have an Indian National Parent. The contention of the German Couple was that the children born to an Indian surrogate mother using the gamete from an Indian anonymous egg donor is India; and that the surrogate mother was required to be regarded as the legal mother of the children. This contention had got the sympathetic eyes of the High Court of Gujarat, which agreed that the surrogate mother should be regarded as the legal mother of the child. The Gujarat High also directed the Union of India to grant citizenship and passport for the children enabling them to travel abroad.

The scenario took a complete change when the Union of India rushed to the Supreme Court of India challenging the verdict of the High Court of India. The Supreme Court of India seemed unmoved by the plea of the German Couple. The Solicitor General had time again stood stead fast to his argument that children born to a surrogate mother cannot be provided with Indian Citizenship.

I personally feel that the arguments which could have strengthened the stand of Union of India, but which was not presented is as follows:

(a) The Supreme Court of India in its earlier decision of Baby Manji (Japanese baby) held that the surrogacy agreement is valid in law.

(b) Any basic surrogacy agreement is required to contain the clause that the surrogate mother relinquishes her rights over the child, which is born to her.

(c)  The surrogacy agreement has to be enforced by a court of law. In the absence of any law to the contrary, the surrogacy agreement should control the conduct of the parties and a contrary view cannot be taken.

(d) Where the court takes an opinion, which is unfounded in law and in the surrogacy agreement, it would amount to legislating of a new principle.

(e) Concluding, in absence of law to the effect that the surrogate mother is the legal mother of the child, the court cannot bring out this new theory.

(f)  India does not have a legal mechanism whereby the parental rights of the surrogate mother would be transferred to the intended parent.

However, the above argument was not presented before the Supreme Court of India in support of the Union of India.

The Supreme Court of India successfully guided the German Couple through the legal maze. The Supreme Court of India had also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justices G.S. Singhvi and C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard.

The Decision of the First Case decided by the Supreme Court on Surrogacy has been extracted hereunder:

IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. 369 of 2008

Decided On: 29.09.2008

Appellants: Baby Manji Yamada
Vs.
Respondent: Union of India (UOI) and Anr.

Hon’ble Judges:
Arijit Pasayat and Mukundakam Sharma, JJ.

JUDGMENT

Arijit Pasayat, J.

1. This petition under Article 32 of the Constitution of India, 1950 (hereinafter for short ‘the Constitution’) raises some important questions.

2. Essentially challenge is to certain directions given by a Division Bench of the Rajasthan High Court relating to production/custody of a child Manji Yamada. Emiko Yamada, claiming to be grandmother of the child, has filed this petition. The Writ Petition before the Rajasthan High Court was filed by M/s. SATYA, stated to be an NG0, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s. SATYA wherein the Union of India through Ministry of Home Affairs, State of Rajasthan through the Principal Secretary, The Director General of Police, Government of Rajasthan and the Superintendent of Police Jaipur City (East), Jaipur were made the parties. There is no dispute about Baby Manji Yamada having been given birth by a surrogate mother. It is stated that the biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. It appears from some of the statements made that there were matrimonial discords between the biological parents. The child was born on 25th July, 2008. On 3rd August, 2008 the child was moved to Arya Hospital in Jaipur following a law and order situation in Gujarat and she was being provided with much needed care including being breastfed by a woman. It is stated by the petitioner that the genetic father Dr. Ifukumi Yamada had to return to Japan due to expiration of his visa. It is also stated that the Municipality at Anand has issued a Birth Certificate indicating the name of the genetic father.

3. Stand of respondent No. 3 was that there is no law governing surrogation in India and in the name of surrogation lot of irregularities are being committed. According to it, in the name of surrogacy a money making racket is being perpetuated. It is also the stand of the said respondent that the Union of India should enforce stringent laws relating to surrogacy. The present petitioner has questioned the locus standi of respondent No. 3 to file a habeas corpus petition. It is pointed out that though custody of the child was being asked for but there was not even an indication as to in whose alleged illegal custody the child was. It is stated that though the petition before the High Court was styled as a “Public Interest Litigation” there was no element of public interest involved. Learned Counsel for respondent No. 3 with reference to the counter- affidavit filed in this Court had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain statements made in the said counter affidavit and has submitted that the petition before the High Court was not in good faith and was certainly not in public interest.

4. We need not go into the locus standi of respondent No. 3 and/or whether bonafides are involved or not. It is to be noted that the Commissions For Protection of Child Rights Act, 2005 (hereinafter for short ‘the Act’) has been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. Section 13 which appears in Chapter III of the Act is of considerable importance. The same reads as follows:

13. Functions of Commission.

(1) The Commission shall perform all or any of the following functions, namely:

(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;

(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures.

(e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;

(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;

(g) Undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;

(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;

(j) inquire into complaints and take suo motu notice of matters relating to, –

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection and development of children;

(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and

(k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions

2) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.

5. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

The word “surrogate”, from Latin “subrogare”, means “appointed to act in the place of”. The intended parent(s) is the individual or couple who intends to rear the child after its birth.

6. In “traditional surrogacy” (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic. ‘

7. In “gestational surrogacy” (also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

8. “Altruistic surrogacy” is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

9. “Commercial surrogacy” is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.

10. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.

11. Alternatively, the intended parent may be a single male or a male homosexual couple.

12. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

13. In the present case, if any action is to be taken that has to be taken by the Commission. It has a right to inquire into complaints and even to take suo motu notice of matters relating to, (i) deprivation and violation of child rights (ii) non-implementation of laws providing for protection and development of children and (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities.

14. It appears that till now no complaint has been made by anybody relating to the child, the petitioner in this Court.

15. We, therefore, dispose of this writ petition with a direction that if any person has any grievance, the same can be ventilated before the Commission constituted under the Act. It needs no emphasis that the Commission has to take into account various aspects necessary to be taken note of.

16. Another grievance of the petitioner is that the permission to travel so far as the child is concerned including issuance of a Passport is under consideration of the Central Government; but no orders have been passed in that regard. The other prayer in the petition is with regard to an extension of the visa of the grandmother of the child requesting for such an order.

17. Learned Solicitor General, on instructions, stated that if a comprehensive application, as required under law, is filed within a week, the same shall be disposed of expeditiously and not later than four weeks from the date of receipt of such application. If the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be availed.

18. The writ petition is accordingly disposed of without any order as to costs. All proceedings pending in any High Court relating to the matter which we have dealt with in this petition shall stand disposed of because of this order.

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.

I am presently meeting a lot of people, surrogates, Intended Parents, Doctors and Journalists. All of them seem to sound one voice of fear, “How safe is surrogacy in India?” Whenever this question is posed to me, I would restrict myself to an answer which most appropriate, “The answer depends on every case.”

It is well known that there is no Surrogacy Law in India, still it is held to be legal in India by the Highest Court of the Land. Now that is a great advantage for the people seeking surrogacy in India. There are many a reason why Intended Parents from all over the world prefer India as the destination for surrogacy, it is cost effective and easier than it is in other states, the medical service is very organised, the surrogates are healthy and the list goes on. In such circumstances, India is clearly a good choice for surrogacy.

Now, the question is how safe is it?

I would say it is VERY SAFE if all the required attention is being paid by the intended parent. The attention should start right from choosing of Assisted Reproductive Technology Hospital and sourcing the surrogate. The role of the Indian Council for Medical Research Guidelines steps in at this point. The guidelines are difficult to enforce, but it is actually a very effective document, which makes sure that there is some sort of regularity in the field. It is very important that the Intended Parents insists that these Guidelines are being followed by the hospitals. Along with those guidelines, I think it is most appropriate for the Intended Parents to follow the below mentioned tips:

Looking for the right Surrogate

Firstly, the Intended Parents have to look for the right surrogate who can understand everything bout this procedure, and someone who is happy in being serving as a surrogate. The quality of the surrogate is not based only on her physical attributes but it is also about her emotional inclination.

I have heard of cases where the hospital undertakes everything from sourcing of the surrogate, fix her renumeration, offering her the medical services, making her accomodation, providing her with the medical facilities etc. According to the ICMR guidelines, none of the above activities other than providing of medical services can be undertaken by the hospital. But is it not a pitiable situation that the surrogate is not even informed by the Hospital, whether she helping an Indian Intended Parent or Intended Parent from abroad. The reason given by the hospital is very simple; that the surrogate may look for more money if she knows that she is doing it for foreign intended parents. I am sure that most of intended parents are not going to be happy with this kind of an answer. The intended parents should choose a surrogate who can understand what the consequences of surrogacy, and someone who can share her feelings with the Intended Parents, rather than hide their identity from the surrogate. The intended parents should interact with the surrogates and feel the vibes before choosing her. I am sure this way the industry will not be named as “buying a baby.” A more humane approach is needed.

Indian Intended Parents are having a luxury compared to the intended parents from abroad. I have come across cases where the intended parents want the surrogate mother to stay with them, at their home for the term of pregnancy. Even better, I have a list of surrogates in my database who are ready for it, and who are happy to do it. That is the right spirit.

Thorough legal and medical counselling

The Intended Parents should make sure that the surrogate has gone through a thorough legal and medical counselling session, facilitating her to understand what she is undertaking. The legal and medical counselling attracts great importance in the procedure of surrogacy. The intended parent must employ a suitable independent legal counsellor who specialises in surrogacy, for making surrogate understand the legal aspects.  More importantly, the counselling to the surrogate should be given in the local language of the surrogate. This will ensure that the surrogate is aware of what she is taking up.

Another important issue is that the surrogate should be counselled with at least one of relatives or friends. The surrogate should be given all possible information on the subject and she should be made to discuss this issue at home and with her family members before taking up surrogacy. There is immense importance attached to this step, as the Indian surrogates are under immense pressure from their family. A counselling to the family members of the surrogate will help remove the social stigma attached to it and the surrogates will come formward more willingly.

Surrogacy agreements

In India, surrogacy is purely a contractual understanding between the parties, which has been recently been pronounced legal by the Supreme Court of India. Care has to be taken that the agreement does not violate any of the laws, which do not in ay way match with surrogacy. I would say that each agreement has to be carefully drafted carrying these very essential points:

· Why does the intended parent opt for surrogacy

· Details about the surrogate

· What is the exact intention between the parties at time of entering into the agreement

· What is type of surrogacy? Gestational, traditional, altruistic, commercial?

· Is the question of motherhood resolved?

· What is the mentioning in the agreement about the paternity?

· Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?

· Is the agreement a proper representation of your intentions?

· How is the compensation clause drafted?

· Does the agreement indicate clearly details with regard to the compensation in times unexpected of mis-happenings to the surrogate?

· Child no lien for dispute over the compensation

· Child’s custody with the Intended parents alone is legal custody

· How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?

· What is the jurisdiction for the disputes arising out of the agreement?

Surrogates should be given good care

Surrogates should be given the best of care provided to surrogates else where in the world. I feel that it is worth spending on caring of the surrogate, taking care of her. I am sure that the Intended Parents are in complete agreement with me.

I am not sure if the ICMR would have thought of the Assisted Reproductive Hospitals running the show in surrogacy. I am hearing that there are a few clinics which takes care of everything, including providing of the accommodation for the surrogate. I am not very sure how good a practice is this. In any case, the surrogates should be given great attention and emotional support, so that they don’t carry the feeling they are exploited for a cheaper price. That is where the role of an independent legal counsel makes an appearance.

Need for an independent legal counsel for the Intended Parents in India

I feel the importance of an independent body that can take care of the affairs of the Foreign Intended Parents during the term of the surrogacy. This service shall make sure that the surrogate is given enough attention and that there is no arising of unpleasant times with the surrogates. The details on this shall be dealt by me in my next article.

The above mentioned tips do not absolve all problems from surrogacy. But these are very very effective steps, which avoids a lot of problem. The issue of surrogacy is more about human emotions. I think choosing the right people as the surrogate itself would avoid half the problems.

Overall, India is a very effective destination for surrogacy. There have been cases where problem arises. But, exceptions cannot be taken as examples. A careful cautious Intended Parent is likely to avoid all problem, making a wonderful surrogacy journey.

            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.