Surrogacy law in the US and draft guidelines for ARTclinics in India
Surrogacyis a complex legal issue in the US with various states adoptingdifferent stances on it. For instance, in Michigan and D.C., surrogacy contractsare void and parties to the contract can be penalized with a $10,000 fine or jailedfor a year. Some other states allow surrogacy but regulate it differently.
How surrogacy is treated in the US
BansArizona, District of ColumbiaVoids and PenalizesMichigan, New YorkVoidsIndiana, Kentucky, Louisiana, NebraskaProhibits some/Allows othersNorth Dakota, Washington,Allows but regulatesArkansas, Florida, Illinois, Nevada, NewHampshire, Texas, Utah, Virginia,Case lawCalifornia has case law on surrogacy,not codified law. It allows andrecognizes surrogacy contracts.For more details on the treatment of surrogacy by these states, pleaseclick here.But there are still many states, whichdo not havea surrogacy law. This cansometimes push surrogacy into a grey area and make matters difficult for partiesinvolved in a surrogacy contract.In India, a surrogacy law is on the anvil. It will largely be based on the surrogacyguidelines currently in use forART clinics in Indialaid down by theIndian Council
of Medical Research. Thisdraft lawis expected to be enacted into law by the
Indian Parliament soon.It lays down detailed guidelines on how the surrogacy contract should be formed,the eligibility of the parties to the contract, and so on. Here are some excerpts of the draft Indian surrogacy law:
The ART clinic cannot be a party to the surrogacy contract. The contract is carried out between the genetic parents and the surrogate.
“A surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. While registering, she must mention that she is a surrogatemother and provide all the necessary information about the genetic parents such asnames, addresses, etc.”
“The birth certificate shall be in the name of the genetic parents.”
“All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the couple seeking surrogacy. Thesurrogate mother would also be entitled to a monetary compensation from the couplefor agreeing to act as a surrogate.”