The legal and illegality of surrogacy is still uncertain in India despite the Surrogacy Regulation Bill passed in the parliament and till now it has not been amended. Surrogacy in layman definition is a legal arrangement in which a woman called a surrogate mother agrees to become pregnant and deliver a child for the benefit of other intended parents who will become the surrogate kid’s parent.
Surrogacy has become a common practice in India. It has become a key discussion even in the Indian Parliament how it should be regulated for equality between surrogates, intended couples, and the rights of the surrogate child. Many couples are seeking India as their surrogacy destination but the “Indian Surrogacy Regulations Bill 2019” that has passed recently in the Indian parliament has hindered many hopeful intended couples’ minds with a big Question “ IS SURROGACY LEGAL IN INDIA?”
Before digging into the specifics of what makes surrogacy legal or if it is legal in India. It is a must for all intending couples, women willing to become surrogate mothers in India, to have a fundamental understanding of what surrogacy is and the legal procedure that is followed in India. The best way to clear all the doubt about is surrogacy legal in India and how it is done, you are just one call away:
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Why are intending people going for surrogacy?
The following points mentioned below are some of the most compelling reasons for the intending people to choose surrogacy:
- A case when it is medically impossible for the couple to conceive naturally.
- A possibility of danger or harm to the mother’s health during pregnancy.
- When a single man or a pair of men wants to start a family.
What is Commercial Surrogacy?
In gestational surrogacy/commercial surrogacy, the intended parents’ female egg and husband sperm is used to create an embryo through in vitro fertilization (IVF). This embryo is then implanted into the surrogate mother for pregnancy. Commercial surrogacy involves financially compensating the surrogate mother for this procedure.
Is Commercial Surrogacy Legal in India?
In terms of India, the answer is a resounding YES. Commercial surrogacy was allowed in India in 2002. However, only one type is permitted as a legal surrogacy operation in India. There are two primary forms of surrogacy used in India:
- Traditional surrogacy
- Surrogacy during pregnancy
Traditional surrogacy – also known as straight surrogacy, is a technique that begins with artificial or natural insemination and continues until the baby is delivered. However, traditional surrogacy has failed to find legal acceptance in India. This essentially indicates that the practice of conventional surrogacy is not permitted in India. It is, in fact, against the law.
The Gestational Surrogacy – also known as host surrogacy was first accomplished in the year 1986. The entire procedure begins with the generation of an embryo using In-Vitro Fertilisation (IVF) technology. The embryo is subsequently implanted into the surrogate uterus. In India, gestational surrogacy is the only type of surrogacy permitted.
Why is Surrogacy a hotly debated issue in India?
Surrogacy is a hotly debated issue in India. This practice has been linked to several social, moral, and legal concerns. The law/legal status differs from nation to nation when it comes to the legal position. In India Surrogacy is controlled by either the Indian Council of Medical Research (ICMR) recommendations or decisions issued by the Supreme Court or High Courts. Many Surrogate mothers suffer as a result of this gap in the legislation since they are unable to assert any rights before the courts or any other authority.
Why is the Surrogacy Regulation Bill passed in India?
Some of the valid reasons that lead to a hot discussion of surrogacy regulation and passing of the bill are as follows:
- Child Trafficking: The legal status given to the practice of surrogacy in India has resulted in a rise in the child trafficking business.
- A Threat to Baby’s Health: Low birth weight, genetic abnormalities, and membrane damage are all hazards to the baby’s health.
- Surrogacy has resulted in the commoditization of offspring, which raises ethical concerns. It is well recognized for severing the link between children and their moms, as well as interfering with nature itself. Women are eventually exploited as a result of this, especially in poor nations.
- Psychological Consequences: Surrogacy has psychological consequences in addition to legal concerns. In India, there have been several examples of legal and psychological difficulties related to surrogacy. There have been several incidents of surrogacy exploitation in which a woman has been mentally harassed or intimidated as a result of her decision to become a surrogate.
Gestational Surrogacy is a type of surrogacy that is permitted in India. India is one of the few countries that still allow commercial surrogacy. Commercial surrogacy, on the other hand, is allowed in India without any legal basis. This essentially implies that, while commercial surrogacy is legal in India, there is no particular law governing it. As previously indicated, the ICMR has established standards regarding surrogacy.
Surrogacy Regulation Bill 2016
In November, the Surrogacy Bill of 2016 was put in the Lok Sabha. The law was approved by the cabinet, but it has yet to be passed and amended. The following are some of the bill’s key points proposals:
- Commercial surrogacy must be outlawed completely.
- In an altruistic surrogacy, the surrogate mother must be a close relative of the commissioning parents and will be the only type of surrogacy permitted. The couples must also demonstrate that they were infertile.
- No single parent, live-in couples in India, or homosexuals can become commissioning parents. Women who were not married or who were childless were also barred from becoming surrogate mothers.
- This law, however, could not be passed.
What does the Surrogacy Regulation Bill 2019 say?
The Surrogacy Regulation Bill 2019 was introduced in the Lok Sabha on July 15, 2019. The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple to hand over the child after the birth to the intended couple.
The Bill banned commercial surrogacy and allows altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
The Bill permits Surrogacy when it is:
For intending couples who suffer from proven infertility
- Not for commercial purposes;
- Not for producing children for sale, prostitution, or other forms of exploitation; and
However, this surrogacy bill 2019 is not yet amended, and surrogacy is continuing in India. Strictly Following all the aspects of the Bill and helping thousands of hopeful intending couples fulfilling their dreams of having a complete family.
What are the Eligibility criteria for an intending couple?
- The couple should have a “certificate of essentiality” and a “certificate of eligibility issued by the appropriate authority.
- For international integrated couples: Either one of the partners should have an Indian Passport for the surrogacy program in India.
What is the certificate of essentiality
- Proven infertility certificate of one or both members of the intending couple from a District Medical Board;
- Order of parentage and custody of the surrogate child passed by a magistrate court.
What are the qualifications for intending couples?
- Indian citizens and married for at least five years;
- The wife should be between 23 to 50 years old, and the Husband should be 26 to 55 years old;
- Couples should not have any surviving child (biological, adopted, or surrogate); excluding a child who is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness.
What are the eligibility criteria for the Surrogate Mother?
- She is a close relative of the intending couple;
- She is a married woman having at least one child of her own;
- She is 25 to 35 years old;
- She is a surrogate mother only once in her lifetime;
- She must possess a certificate of medical and psychological fitness for surrogacy.
- The surrogate mother cannot donate her gametes (eggs) for surrogacy.
Legal Parentage order, abortion of the surrogate child in India
- A child born from a surrogacy procedure is deemed to be the biological child of the intending couple.
- An abortion of the surrogate child requires the written consent of the surrogate mother and the authorization of the appropriate authority. This authorization is compliant with the Medical Termination of Pregnancy Act, 1971.
- The surrogate mother has an option to withdraw from surrogacy before the embryo is implanted into her womb.
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