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Indian Surrogacy Laws explained for you
Surrogacy Legalities in India
Commercial surrogacy has been legal in India since 2002. India has emerged as a leader in international surrogacy. Surrogacy at Indian surrogacy clinics has been increasingly popular with infertile couples, gays and single people from abroad due to relatively low cost. Indian clinics charge intended parents as a package for surrogacy including surrogate mother’s compensation and medical and professional services.
Please note that a due to a recent regulation by the government of India only married couples from abroad can now apply for surrogacy in India. Unmarried Indian citizens and singles can still apply.
Also, you will need to visit India for surrogacy on a medical visa only. To apply for a medical visa, send us your details here and we will send you an invitation letter to apply for medical visa at the Indian embassy.
In 2008, the Supreme Court of India has held that commercial surrogacy is permitted in India. That has again increased the confidence of intended parents in going in for surrogacy in India.
Law on surrogacy in India
Surrogacy in India is unregulated as they yet don’t have legislation controlling surrogacy. Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simply guidelines.It was in baby Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.
Indian Council for Medical Research guidelines on Surrogacy
The Indian Council for Medical Research has given Guidelines 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 taken to control surrogacy arrangements. The following observations had been made by the Law Commission:
- 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.
- 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.
- A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
- 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.
- 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.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
Registration of Birth in Surrogacy Cases
The birth certificate will have the names of the biological parents in the surrogacy cases. The surrogate mother’s name and details will not appear on the birth certificate. To get details on the post pregnancy process to take your baby back, click here.
Surrogacy Legal Services Offered
In Go Surrogacy packages, we include the legal services of a high court lawyer to draft the legal contracts with your details and the surrogate mother’s details. The contract once drafted will be sent to you on email for your consideration and approval. Once you are in India, before the embryo transfer in the surrogate, the contract will be signed by all parties. If you wish, you can meet the lawyer too. Once notarized by the court, a copy of the contract will be sent to you. For the exit of the baby from India to your country, normally a lawyer services may not be required and hence they are not included in the contract. The lawyer can be contracted for exit services on a direct payment basis, if needed.
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January 4, 2023
