Surrogacy and Indian Law: Is it Legal in India?

Due to non-availability of a statute on Surrogacy in India, it is legal as

there are guidelines for ART Clinics formulated by ICMR/NAMS
(Indian Council of Medial Research/National Academy of Medical
Sciences) and report of Law Commission of India bearing no. 228
which are being used guidelines for regulating surrogacy in India.

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:

1. 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.
2. 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 subsequent willingness of none to take delivery
of the child.
3. A surrogacy contract should necessarily take care of life
insurance cover for surrogate mother.
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
childabuse, 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 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.
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. Sexselective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical
Termination of Pregnancy Act 1971 only.

Thus, Surrogacy is legal in India and the parties can entered into

the Surrogacy Agreement. However, there is no legislation
governing the Surrogacy law in India except the guidelines provided
by Indian Council for Medical Research in the year 2005 regulating
Assisted Reproductive Technology procedures and the 228th report of
the Law Commission of India

 
Who will be Legal Mother?

In India, according to the National Guidelines for Accreditation,

Supervision and Regulation of ART Clinics, evolved in 2005 by the
Indian Council of Medical Research (ICMR) and the National
Academy of Medical Sciences (NAMS), the surrogate mother is not
considered to be the legal mother. The birth certificate is made in
the name of the genetic parents. The US position as per the
Gestational Surrogacy Act 2004 is pretty similar to that of India.

Thus, the definition of surrogacy itself recognizes that the intended

parents are the parents genetically related to the child and not the
surrogate mother or her husband. IVFET (In vitro Fertilization Embryo
Transfer) “In vitro Fertilization -Embryo Transfer (IVFET) is the
fertilization of an ovum outside the body and the transfer of the
fertilized ovum to the uterus of the woman”. A surrogate mother
carrying a child biologically unrelated to her must register in her own
name. While registering she must mention that she is surrogate
mother and provide all the necessary information about the genetic
parents such as names, addresses, etc. She must not use/register in
the name of the person for whom she is carrying the child, as this
would pose legal issues, particularly in the untoward event of maternal
death(in whose names will the hospital certify this death?.). The birth
certificate shall be in the name of the genetic parents.

The clinic, however, must also provide a certificate to the genetic

parents giving the name and address of the surrogate mother.

A child born through ART shall be presumed to be the legitimate child

of the couple, born within wedlock, with the consent of both the
spouses, and with all the attendant rights of parentage, support and
inheritance. Sperm/oocyte donors shall have no parental rights or
duties in relation to the child, and their anonymity shall be protected
except in regard to what is mentioned under item.

Thus above guidelines as provided by Indian Council for Medical

Research in the year 2005 regulating Assisted Reproductive
Technology procedures itself recognizes the child born through ART
procedure be the legitimate child of the Intended Father and Intended
Mother and that the surrogate mother or sperm/oocyte donor shall
have no parental right over the child. The presumption has been
raised towards the legitimacy of the child as the child of a couple, born
within wedlock, with the consent of both the spouses, and with all the
attendant rights of parentage, support and inheritance.

Law Commission 228th Report and Draft ART Bill emphasis on many

rights and legal implications which has been defined in salient features
as below:-

 
Determination of legitimacy of the surrogate 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, having been born in wedlock and with the consent of
both spouses, and shall have identical legal rights as a legitimate child
born through sexual intercourse.

(2) A child born to an unmarried couple through the use of assisted

reproductive technology, with the consent of both the parties, shall be
the legitimate child of both parties.

(3) In the case of a single woman the child will be the legitimate child
of the woman, and in the case of a single man the child will be the
legitimate child of the man.

(4) In case a married or unmarried couple separates or gets divorced,

as the case may be, after both parties consented to the assisted
reproductive technology treatment but before the child is born, the
child shall be the legitimate child of the couple.

(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.

(6) If a donated ovum contains ooplasm from another donor ovum,

both the donors 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 the donor of both the ooplasm and the ovum shall relinquish all
parental rights in relation to such child.

(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, as the case may be, who sought such use.