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Surrogacy laws in India | Fertilityworld
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  • Before we take you into the Surrogacy Provision of India 
  • Let us understand…

What is surrogacy?

Surrogacy involves a surrogate mother agreeing to carry a baby for someone else (an intended person). After the baby is born, the birth mother gives custody and guardianship to the intended parent or parents. 

Surrogacy has complex legal and medical steps that must be met. It’s important to be aware of the process, seek professional advice, and build supportive networks with the Fertility World Surrogacy Center in India.

Does India allow Commercial Surrogacy?

The answer is a resounding YES. Commercial Surrogacy has been allowed in India since 2002. However, only gestational surrogacy is permitted as a legal surrogacy operation in India.

1. Gestational Surrogacy: This form of surrogacy is also known as host surrogacy, it was first successful in the year 1986. The entire procedure begins with the creation of an embryo using IVF (in vitro fertilization) technology, which is subsequently put in the surrogate womb (uterus).

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What are the recent surrogacy laws in India?

In November 2016, the Surrogacy Regulation Bill was tabled in the Lok Sabha. The law was approved by the cabinet, but it has yet to be passed. Therefore, this bill is not yet followed. The following are some of the bill’s key proposals:

  • Commercial surrogacy must be outlawed completely.
  • The surrogate mother must be a close relative of the commissioning parents. 
  • The couples must prove that they are infertile.
  • Surrogacy clinics would all need to be registered. 
  • All registered clinics should maintain surrogacy records for 25 years.
  • No single parent, live-in couples in India, or homosexuals may become commissioning parents via surrogacy. 
  • Women who were not married or who were childless were also barred from becoming surrogate mothers. 
  • This law, however, could not be passed.

Surrogacy Regulation Bill 2020

The Union Cabinet on 26th February 2020 approved the new Surrogacy Regulation Bill 2020, allowing any willing woman to become a surrogate mother. The Bill took a backseat due to the COVID-19 pandemic but is expected to be introduced as the 2021 Bill in the Lower House of the Indian Parliament in its upcoming session. The Bill is a significant improvement to the Surrogacy Regulation Bill 2019, however, it continues to adopt a needs-based approach rather than a rights-based approach which now awaits the passing of the bill before it receives presidential assent and serves its purpose. Some major features of the proposed legislation about surrogacy are:

  • Establishment of Regulatory Bodies: The bill proposes to regulate surrogacy by establishing the National Surrogacy Board at the central level, the State Surrogacy Board at the state level, and one or more appropriate authorities for each of the Union territories.
  • To set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics.
  • Ban on commercial surrogacy: The Law Commission of India had recommended the prohibition of commercial Surrogacy by enacting suitable legislation in its 228th Report. 
  • Permits only altruistic surrogacy to quash the booming industry of rent-a-womb and prevent exploitation of surrogate mothers. 
  • A ban on commercial surrogacy can also be construed to mean a ban on fashion surrogacy, where there is no medical necessity but a matter of convenience. Countries like Australia, New Zealand, the United Kingdom, Canada, Netherlands, South Africa, etc. also follow the same.
  • Omission of the definition of infertility: The Surrogacy (Regulation) Bill 2019 required at least one member of the intending couple to be suffering from ‘proven infertility’ for them to be eligible for the process of surrogacy. However, the 2020 bill amended possible surrogacy for couples when an intending couple has a medical indication necessitating gestational surrogacy
  • An Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy, to opt for surrogacy.

Which authority Governs the Surrogacy in India?

In India, Surrogacy is regulated by either the Indian Council of Medical Research (ICMR’s) recommendations or decisions issued by the Supreme Court or High Courts. Earlier, the 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. However, today she is provided with the full legal rights she deserves.

What are the Surrogacy Provisions in India?

India is one among the few countries that are still allowing commercial surrogacy for its citizens and in special cases foreigners (anyone holding an Indian passport, either one of the partners). 

India Commercial surrogacy is allowed without any legal basis, which implies that there is no particular law governing it. However, the Indian Council Of Scientific Research (ICMR) has established standards regarding surrogacy guidelines. Therefore, The Fertility World surrogacy center strictly follows the surrogacy guidelines indicated by the ICMR and executes the Surrogacy programs, fulfilling many hopeful parental dreams to experience parenthood nurturing their biological child.

Lets read Surrogacy Guidelines indicated by ICMR

In the year 2002, the Indian Council for Medical Research indicated surrogacy guidelines, that had been approved by the government in 2005, regulating Assisted Reproductive Technology (ART) procedures. The Law Commission of India submitted the 228th report on ART procedures discussing the importance and need for surrogacy, and also the steps are taken to control surrogacy arrangements. The following guidelines have been made by the Law Commission:

  1. Surrogacy programs will continue to be governed by contract and agreement amongst the involving parties, which will contain all the terms such as: 
  • The 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 a 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.
  1. A surrogacy arrangement should provide financial support to a surrogate child in the event of death of the prospective couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  2. A surrogacy contract should necessarily take care of life insurance cover for surrogate mothers.
  3. One of the intended parents should be a donor as well. Why? because the bond of love and affection with a child primarily emanates from a biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoption, 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.

  1. The 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 a declaration of guardian.
  2. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  3. The right to privacy of the donor as well as the surrogate mother should be protected.
  4. The commissioning parents and the surrogate mother were both protected by the standards.
  5. Sex-selective surrogacy should be prohibited.
  6. Cases of abortion should be governed by the Medical Termination of Pregnancy Act 1971 only.

Eligibility of an intending couple to choose Surrogacy in India?

  • Either one of the intending couples should be suffering from ‘proven infertility’
  • A Married couple who is unable to conceive after unprotected coitus or other proven medical condition preventing a couple from conception.
  • Couples, having certain medical conditions like absent or abnormal uterus, irreversible damage or destruction of the uterus, removal of the uterus due to cancer, fibroids, etc.
  • Couples medically prove that surrogacy is the only option left with them to have a child of their own.
  • when an intending couple has a medical indication necessitating gestational surrogacy” as the condition precedent in the 2020 bill.
  • An Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy, to opt for surrogacy.

Who can become a surrogate mother in India?

  • A married woman having a child of her own,
  • She must be between the age of 25 to 35 years,
  • A certificate of medical, psychological fitness for surrogacy from a registered medical practitioner is mandatory.
  • She cannot donate her gametes for surrogacy,
  • A surrogate mother not more than once in her lifetime
  • She is entitled to insurance coverage for 36 months covering postpartum delivery complications.

Who is eligible to donate the eggs?

Any willing woman can donate her eggs for a surrogacy program. She must fall under the following criteria:

  • Must have previously successful pregnancy and delivery
  • She must be between the age of 25 to 35 years,
  • A certificate of medical, psychological fitness for donation is mandatory

What are the rights of the Surrogate child?

  • He/She is deemed to be a biological child of the “intending couple” or “intending woman”
  • He/She shall be entitled to all the rights, privileges available to a natural child.
  • He/She is not for sale, prostitution or any other form of exploitation or abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy, exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner and stringent penalties have been provided to deter potential violators.

Conclusions

In conclusion, the proposed surrogacy legislation is a unique blend of social, moral, ethical, legal, scientific issues, and is an effective attempt to harmonize the conflicting interests inherent in the process of surrogacy to ensure the betterment of the child while also protecting the rights of the surrogate mother and the commissioning parents. The stringent penalties under the proposed legislation will act as a deterrent for potential violators and ensure all the parties practice the process fairly and reasonably. 

However, it would be prudent to pass the Assisted Reproductive Technology (ART) Regulation Bill 2020. Before The Surrogacy Regulation, Bill 2020 is passed, as it would help in establishing a regulatory mechanism for ART clinics as a whole, and in regulating processes like surrogacy and abortion in a better manner.

For more detailed information regarding the SURROGACY PROVISIONS IN INDIA. OR Are you getting started with the surrogacy journey? The Fertility World surrogacy center in India provides the best surrogacy treatments with Guaranteed success rates of up to 100%. It also offers free consultation and up to 10% concession from its inclusive surrogacy packages.

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