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Laws relating to surrogacy in india


Surrogacy the term used for an arrangement in which a woman carries and delivers a child for another couple or person. The surrogate mother may be the child's genetic mother (called traditional surrogacy), or she may be genetically unrelated to the child (called gestational surrogacy).

If the surrogate receives compensation in addition to the reimbursement of medical and other reasonable expenses, the arrangement is called commercial surrogacy; otherwise, it is often referred to as altruistic surrogacy.


Law on surrogacy in India

Commercial surrogacy is legal in India yet without any legal provision governing the same. Thus, Surrogacy in India is totally unregulated as there existsno legislation controlling surrogacy. Although, the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy. The provisions of the said guidelines lay that surrogate mothers need to sign a “contract” with the childless couple. There are, however, no stipulations relating tobreach, frustration or any remedies available thereto.


The Indian Council for Medical Research published its Guidelines relating to Surrogacy in India in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps to be taken to control such surrogacy arrangements. The following observationswere made by the Law Commission:

  1. Surrogacy arrangement will continue to be governed by law of 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 carried out for commercial purposes.
  2. 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 to be born out of the agreement.
  3.  Insure the surrogate mother for life.
  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 made to facilitate and regularize such surrogacy agreements 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. A legitimate child born by way of surrogacy agreements will have all the rights i.e., the rights of a natural born child with relation to the commissioning parents.
  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.

Landmark cases regarding surrogacy

  1. Baby Manji Yamada vs. Union of India (UOI) and Anr. (Order dated 29.09.2008) passed by the Hon’ble Supreme Court of India held that commercial surrogacy is legal in India.
  2. In Jan Balaj case, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through commercial surrogacy by a German National in Anand district in Gujarat.This landmark case conferred an Indian born child by way of surrogacy all the rights which anIndian citizen enjoys.

 Surrogacy v Adoption:

As per the recommendation made by the Law Commission of India many questions arise with respect to adopting a child on one hand and surrogacy arrangements on the other. In my personal opinion, both the methods are wonderful ways to add to the families. The main reason behind resorting to arrangements with a surrogate mother than to adopt a child is that one can have a biological blood connection to the child. Commissioning parents can carry on their bloodline and family name into future using their sperms/eggs or both.


SURROGACY LAWS OUTSIDE INDIA:

Surrogacy Act 2010(NSW): Surrogate children now have the same rights on intestacy as natural children under newly commenced legislation in NSW. The child enjoys full right in property as a natural born child.

In UK, at birth the intended father name can be put on the birth certificate.