What are the legal aspects to be considered if one wants to undergo/opt for surrogacy in India?

Question

What are the legal aspects to be considered while opting for / offering Sperm Donation?

Answer 1

Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy and a sought after destination in surrogacy related fertility tourism. Surrogacy in India is relatively low cost and the legal environment is favorable. The following observations had been made by the Law Commission:

• Surrogacy arrangement is carried out through a contract amongst the parties. The contract comprises of the terms which requires consent of surrogate mother, her husband’s approval and other family members to carry out the procedure. The details of the procedure of artificial insemination, reimbursement of all reasonable expenses and willingness to hand over the child to intended parents, are the important aspects to be mentioned in agreement.
• Financial aid should be provided to surrogate mother, in the event of death of commissioning couple or individual before the delivery of the child or divorce between them.
• The contract must cover Life Insurance for the 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.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation.

Answer 2

 

India has emerged as the leader when it comes to commercial surrogacy, which became official in the year 2002. Since then, the tourism related to surrogacy has spread and gained immense popularity. However, anyone opting for this procedure should be aware of some legal facts surrounding the same. Though advantages like being low cost and technically advanced are there, some legal hurdles may cause complications-

Changing Trends

The guiding for in current times is the Surrogacy Contract between parties and the Assisted Reproductive Technique (ART) Clinics. Though the Legislature has enacted ART BILL, 2008 it is still to become a law. Surrogacy Laws in India are focussed with keeping the country as an International Surrogacy destination.

Bilateral Laws
 
India also permits International Surrogacy, which includes bilateral issues. So if parents from another country choose to hire an Indian surrogate, laws of both nations come into action. This has been done to prevent exploitation and commercialization of the Human Reproductive system.

228th Report of Law Commission

As per the 228th Report, there is a need for legislation to regulate assisted reproductive technology clinics as well as rights and obligation of parties to a surrogacy. Under this-
 

• All surrogacy arrangements are governed by contracts. This will contain terms pertaining to constant of surrogate mother to bear child, agreement of family, medical procedures of artificial insemination, reimbursement of relevant expenses, etc. but not for commercial purposes.

• It also takes care of life insurance cover for surrogate mother.

• Either parent should be the donor to share a bond of love with the child. This applies for single parents too. Other than this, parents are advised to adopt rather than opt for surrogacy.

• The surrogate child would be considered the legitimate child of the commissioning parent and the birth certificate would have the names of the commissioning parent(s) only.

• Right to privacy is ensured for both donors and the surrogate mother today. No form of sex selective surrogacy would be allowed.

• All abortions would be under the Medical Termination of Pregnancy Act 1971 only.