While surrogacy is a boon for childless couples, there are many legal factors around it that must be kept in mind. We shed some light on what the laws around surrogacy in India are.
Yes, commercial surrogacy is legal in India. But it’s still unregulated in our country as we don’t have legislation controlling surrogacy. And although the Indian Council of Medical Research (ICMR) has set ‘national guidelines’ to regulate surrogacy, these are still simply guidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.
Landmark cases regarding surrogacy
It was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.
In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district in Gujarat.
Indian Council for Medical Research’s guidelines for surrogacy
In 2005, The Indian Council for Medical Research gave guidelines to help regulate Assisted Reproductive Technology procedures. 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:
- Surrogacy arrangement will continue to be governed by a contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear the 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.
- A surrogacy arrangement should provide for financial support for the surrogate child in the event of death of the commissioning 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.
- A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
- 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 child-abuse, 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.
- Legislation itself should recognise 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.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
Prevalence and success of surrogacy in India
Prevalence in India is hard to predict as there are no exact figures available and prevalence is also dependent on specialised centres that cater to surrogacy as an option to couples that have no other way of getting a baby of their own.
However, the success rate of surrogacy is almost 45% with fresh embryos and 25% with frozen embryos.
The package for surrogacy in India almost costs 50% less as compared to other countries and can vary between Rs 8,00,000 to 15,00,000 approximately.
The surrogacy package price estimate above, covers doctor fees, legal fees, surrogate work up, antenatal care, delivery charges, surrogate compensation, egg donor, drugs and consumables, & IVF costs.
Written by Dr Puja Rathi
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Photograph via sxc.hu