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Legal Aspects

Taking Your Baby Home
Before embarking on the route of surrogacy overseas it is imperative that intended parents are fully aware of the rules and regulations in their home country regarding returning with your child. Surrogacy Solutions India has a wide-ranging understanding of the legal requirements in this regard. As part of our service we will assist in every way to overcome any local obstacles, however, it remains the responsibility of the Intended Parents to satisfy the regulations of their country.

The Indian Government’s Views on Surrogacy Explained
Surrogacy, whether altruistic or paid for is entirely legal in India. Surrogacy regulations have long been something of a guessing game in India as there were no set guidelines. Thankfully for all concerned the laws and guidelines now give a clear and concise picture of the Indian government’s view on surrogacy. The guide was first set out in 2005 and the full “Assisted Reproductive Technology (Regulation) Guidelines” have been amended both in 2008 and 2010. The Guidelines are shortly to be placed before Parliament for passing into law. Surrogacy, in all its forms, is included and defined in this wide-ranging guide covering all aspect of ART. Below, you will find extracts from the guide. This will help intended parents understanding regarding parental rights and the surrogate mother regarding receiving compensation.

Rights and duties in relation to surrogacy
(1) Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable. (2) All expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the couple or individual seeking surrogacy. (3) Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate. (4) A surrogate mother shall relinquish all parental rights over the child. (5) No woman under twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no woman shall act as a surrogate for more than three successful live births in her life. (6) Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and must declare in writing that she has not undergone intravenous medical treatment or received a blood transfusion. (7) Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.

No surrogate mother shall undergo embryo transfer more than three times for the same couple. clearly declare herself to be a surrogate mother. the consent of her spouse shall be required before she may act as such surrogate. (13) A surrogate mother shall not act as an oocyte donor for the couple or individual. having been born in wedlock and with the consent of both spouses. (19) A foreigner or foreign couple not resident in India. except by an order of a court of competent jurisdiction. she may. including where the embryo was a consequence of donation of an oocyte or sperm. (17) A surrogate mother shall be given a certificate by the person or persons who have availed of her services. if she wishes. as the case may be. register at the hospital or such medical facility in her own name. in respect of all medical treatments or procedures in relation to the concerned child. till the child / children are delivered to the foreigner or foreign couple or the local guardian. (21) A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate. at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. . seeking surrogacy. In the case of a relative acting as a surrogate.(8) A surrogate mother shall.2. as well as a person unknown to the couple may act as a surrogate mother for the couple. decide to accept on mutually agreed financial terms. or a non-resident Indian individual or couple. and shall have identical legal rights as a legitimate child born through sexual intercourse. seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34. all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research. (14) No assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person. Determination of status of the child (1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple. stating unambiguously that she has acted as a surrogate for them. Further. and provide the name or names and addresses of the person or persons. (15) Any assisted reproductive technology clinic acting in contravention of sub-section 14 of this section shall be deemed to have committed an offence under this Act. (12) Subject to the provisions of this Act. (20) A couple or an individual shall not have the service of more than one surrogate at any given time. (11) The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child / children irrespective of any abnormality that the child / children may have. (18) A relative. and the refusal to do so shall constitute an offence under this Act. the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child / children born through surrogacy. outside of India to the country of the party’s origin or residence as the case may be. as the case may be. for whom she is acting as a surrogate. along with a copy of the certificate mentioned in clause 17 below. (10) The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents / parent of the baby. a known person. the relative should belong to the same generation as the women desiring the surrogate. (9) If the first embryo transfer has failed in a surrogate mother. (16) In the event that the woman intending to be a surrogate is married.

with the consent of both the parties. with potential to rewrite the social landscape. (5) A child born to a woman artificially inseminated with the stored sperm of her dead husband shall be considered as the legitimate child of the couple. sexually transmitted or otherwise. enact surrogacy laws “unmarried couples” and “single persons” from India and abroad to have children using ART procedure and surrogate mothers. the child shall be the legitimate child of the couple. 16 Comments email print Single men. (7) The birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents. who sought such use Surrogacy not for married couples only: Draft law Satya Prakash . (3) In the case of a single woman the child will be the legitimate child of the woman. June 21. may be tabled in the monsoon session of Parliament if the Union Cabinet clears it. the path is open for gays and lesbians to use ART procedure. (4) In case a married or unmarried couple separates or gets divorced. both the donors shall be medically tested for such diseases. after both parties consented to the assisted reproductive technology treatment but before the child is born. as may be prescribed. and the donor of both the ooplasm and the ovum shall relinquish all parental rights in relation to such child. and all other communicable diseases which may endanger the health of the child. women and even gays and lesbians could soon get the legal sanction to have children using surrogate mothers. as the case may be. as the case may be.” said senior advocate Rajiv .(2) A child born to an unmarried couple through the use of assisted reproductive technology. shall be the legitimate child of both parties. and in the case of a single man the child will be the legitimate child of the man. (6) If a donated ovum contains ooplasm from another donor ovum. The draft Bill legalising surrogacy in India — the Assisted Reproductive Technology (ART) [Regulation] Bill 2010 — has provided for single parenthood by allowing related stories   Cradle of the world Guidelines not enough. The Bill. 2010 Email to Author First Published: 00:38 IST(21/6/2010) Last Updated: 01:50 IST(21/6/2010) share share on facebookshare on linkedinshare on googleshare on emailmore. <b1> “Along with the term single persons. Hindustan Times New Delhi.

who played a crucial role in drafting the Bill along with his colleagues at Public Interest Legal Support and Research Centre. Nikolas and Leonard. born to an Indian surrogate mother in January 2008. is in view of the two-year legal battle of the surrogate sons. born to the German couple Jan Balaz and Susan Lohlad. But its interpretation has been left open.” the report had stated. perhaps. The Assisted Reproductive Technology (Regulation) Bill. . as the case may be. The commission had recommended legalising only altruistic surrogacy arrangements and not commercial ones. Asked if such a legislation would conform to traditional Indian values.” Renting of womb is legal in India but there is no law to regulate surrogacy. “Wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers. Married persons will mostly use it. it envisages a national framework for the regulation and supervision of Assisted Reproductive Technology (ART). 2010 An expert committee has got ready the Draft Bill for legalising surrogacy. the surrogate mother will have to enter into a legally enforceable surrogacy agreement. It states that foreigners or NRIs coming to India to rent a womb will have to submit documentation confirming that their country of residence recognises surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. Is the proposed legislation giving legal rights to parents and others to have surrogate babies pathbreaking? A close look By Anil Malhotra in The Tribune THE Union Cabinet will shortly examine the draft Assisted Reproductive Technology (Regulation) Bill. will be tabled in the monsoon session of Parliament. The two kids. Clause 34(3) of the draft Bill specifically says that apart from all expenses involved. LAW RESOURCE INDIA Legalising surrogacy — Boon or bane? Posted in UNCATEGORIZED by NNLRJ INDIA on July 14. Subsequently.Dhavan. But the option to create family will also be available to all others. were rendered stateless with neither German or Indian citizenship.000-crore pot of gold”. This. the Supreme Court got them exit permits in May 2010. “The expression „unmarried couples‟ generally suggests heterosexual relationships. 2010. 25. After the Union Cabinet’s consideration. Only a woman in the age-group of 21-35 can become a surrogate mother but she can not bear more than five children including her own. live-in relationships and entitling even gays and lesbians to start families using surrogate mothers — at one go. When it becomes law. for agreeing to act as such surrogate. The Bill proposes to set up a mechanism to regulate and supervise surrogacy in India. Floated earlier in 2008. single parenthood. and then table it in Parliament. the Bill makes it mandatory for foreigners to submit certificates on their country‟s policy on surrogacy and that the child born to an Indian surrogate mother will get entry into the commissioning parent/s‟ country. But the draft Bill legalises commercial surrogacy as well. “the surrogate mother may also receive monetary compensation from the couple or individual. Dhavan said.” By conferring the right to have children on unmarried couples and single persons. married or unmarried couples. the Bill attempts to achieve several historic feats — legalising commercial surrogacy. It legalises commercial surrogacy for single persons. A 2009 Law Commission report had described ART industry as “a Rs. In view of the recent controversy involving a German couple‟s child born to a surrogate mother in India. 2010. “This Bill does not provoke a moral attack on the institution of family.” She will have to relinquish all parental rights over the child in favour of commissioning parent/s.

compensated surrogacy arrangements are either illegal or unenforceable. This followed a debate in Knesset (Israeli Parliament) and the Jerusalem District Court ruled in appeal that it was in the children‟s best interest to hold the DNA test to establish their paternity.Similarly. should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul. Ethically. Today. after being stranded in Mumbai. prompts India to plan a legislation to protect the genetic parents. abundant choices of donors with similar racial attributes and the lack of any law to regulate these practices is attracting both foreigners and NRIs to sperm banks and surrogate mothers. . a gay Israeli couple was granted Israeli passports only after a DNA paternity established in May 2010 that gay Dan Goldberg was the father of Itai and Liron born to a surrogate mother in Mumbai. will it amount to adultery? Is the Bill a compromise in surpassing complicated Indian adoption procedures? Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries? Legalising surrogacy — Boon or bane? The Draft Bill lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with the existing laws. surrogate mother and the child? India‟s surrogacy boom began in January 2004 with a grandmother delivering her daughter‟s twins. Moreover. In some states in Australia. commercial surrogacy has been illegal since 2004. India boasts of being the first to legalise commercial surrogacy soon to legitimise both intra-and inter-country surrogacy. Uzbekistan. then. These pitfalls need to be examined closely before enacting the legislation. Pakistan besides Nepal are descending on sperm banks and In-vitro Fertilisation (IVF) centres in India looking for South Asian genetic traits of perfect sperm donors. In most states in the US. Before Parliament passes the Bill. it must be debated thoroughly. easy availability of surrogate wombs. renting wombs has become an easy and cheap option in India. the UK and Canada and foreigners from Malaysia. although altruistic surrogacy is allowed. Relatively low cost of medical services. In France. In Canada and New Zealand. Indonesia. surrogacy. arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In the UK. What. whether commercial or not. Germany and Italy. the UAE. The success spawned a virtual cottage industry in Gujarat. Afghanistan. is unlawful. The would-be parents from the Indian diaspora in the US. no contract or surrogacy agreement is legally binding.

Gynaecologist. in traditional terms of having a father. the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy. is a step in the right direction. Exploitation. Clinically called ART. Neglect and abuse of these children is an issue of concern and a mechanism should be put in place for monitoring their progress by social agencies. — Anupam Gupta. the Supreme Court of India and the Punjab and Haryana High Court A step in the right direction THE Draft Assisted Reproductive Technology (Regulation) Bill. people might become overenthusiastic and have a baby for which they are not emotionally prepared on a long-term basis.000 whereas advertisements on websites in India give varying costs in the range of US $ 10. But then. outsourced pregnancies or baby farms”. in “a kind of baby-farming operation of a wholly distasteful and lamentable kind”. it has been in vogue in India since 1978 and today an estimated 200. or as the Court of Appeal in England put it in 1985. Surrogacy in the UK. The proposed Bill. The only proper way to pursue the Bill would be to abandon it. It is presumably considered legitimate because no Indian law prohibits surrogacy. however. mother and brother/sister. extortion and ethical abuses in surrogacy trafficking are rampant and surrogate mothers are misused with impunity.Surreptitiously. Everything would be in black and white and legal redressal for any failures will be possible. Punjab and Haryana High Court Negative impact on society For infertile couples wanting to have children. IVF and surrogacy. it will not be in the interest of the children born out of such an arrangement and thus will have a negative impact on society. Senior Advocate. its inevitable consequence would be the creation of a market specialising in the sale and purchase of babies. Chandigarh Repugnant to human dignity It is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else‟s child. However. legalises not only surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation” or “on mutually agreed financial terms”. the Supreme Court observed that “commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent. India has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs 25. The writer is Advocate. the Indian Council of Medical Research guidelines (2005) for accreditation. . there is no accountability of the IVF centres as they can deny everything as legally they don‟t even exist. In the absence of any law to govern surrogacy. is important for the upbringing of any child and the same cannot be provided by gay or lesbian couples or individuals. — Dr Anju Huria. But if it encourages single parenthood.000 and offer egg donors and surrogate mothers. At present. Children born to such couples or individuals may lack confidence. It will definitely affect the children in the long run. with things becoming easier and legal. Surely. In Baby Manji Yamada‟s case (2008).000 crore today.000 clinics across the country offer artificial insemination. Family togetherness. Whatever the intentions. as a retort. supervision and regulation of ART clinics in India are often violated. The setting up of ART banks will ensure quality check and accountability. the ART would make things easier as regulations will be there for the entire process. flourishing and thriving in the business of babies. It will help regulate the functioning of the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal. 2010. It is a free trading market. the US and Australia costs more than US $ 50. no law permits surrogacy either. These words of the Warnock Committee reporting to the British Government in 1984 remain unanswerable even today.

8. Head. A woman in the age-group of 21-35 can become a surrogate mother. After the Delhi High Court verdict on homosexuality. ART banks. Chavan. Govt Medical College Hospital. 4. Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation. . Psychiatry Department. The Law Commission of India (2009) described ART industry as a “Rs 25.S. The board will have a registration authority which. 7. Jindal.000-crore pot of gold”. 2. renting a womb by Indian and foreign couples looking for surrogate mothers is expected to become hassle-free. It recommended only altruistic surrogacy arrangements and not commercial ones. She will be allowed five live births. In case of a single man or woman. But the Draft Bill legalises commercial surrogacy as well. 3. She will not be allowed to donate oocytes more than six times in her life.Doctors alone can run the IVF clinics. If Parliament passes the Assisted Reproductive Technology (ART) Bill. — Dr Umesh N. the couple will bear the surrogate‟s expenses and give monetary help to her. 10. the baby will be his/her legitimate child. State boards will give accreditation to ART banks — private and government. It defines a „couple‟ as two persons living together and having a sexual relationship. Sector 20. Chandigarh Don’t keep doctors out of the loop Those who would run ART banks will not be professional doctors and hence won‟t be able to make the right decision. The Draft Bill gives gays. Foreign couples must submit two certificates — one on their country‟s surrogacy policy and the other stating that the child born to the surrogate mother will get their country‟s citizenship. 9. Sector 32. 5. even two gay men can claim to be a couple. in turn.— Dr B. singles the legal right to have surrogate babies. The couple may enter into an agreement with the surrogate. Jindal IVF and Sant Memorial Nursing Home. accredited by the government. A child born to an unmarried couple using a surrogate mother and with the consent of both parties shall be the legitimate child of both of them. 11. Keeping them out of the loop will not be in the interest of either the surrogate mothers or those hiring them. They will not have clinical knowledge about the quality of semen or oocytes. Renting of womb is legal in India but there is no law at present to regulate surrogacy. 6. Chandigarh Rent a womb: The proposed legislation 1. including her own children. During the gestation period. will maintain a list of all In-vitro Fertilisation (IVF) centres and monitor their functioning. will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor.