Surrogacy Laws in India

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News Update: As of Jan 2013, Gay surrogacy has been banned in India. However options are still available in Thailand and in Mexico.

There is also a new visa guideline in place in  India. Patients should arrive on a medical visa when doing surrogacy in India and those applying for the medical visa  should be legally married at least 2 years. India  not accepting any new single parents at this time.

India's regulations are not against single parents, the FRRO specifically states that once the draft law is implemented and visa guidelines for single parents are re-issued, patients can start treatment again.

Previously, commercial surrogacy in India was legal and notable government regulation or legislation were absent. The Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS) drafted the National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology (ART) Clinics in India for suggestion, however the following provisions are not enforceable in the courts of law.

The following annotations were released by the Indian Council of Medical Research:

Assisted Reproductive Technology Bill 2010:

34. 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 if available, 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 less than twenty one years of age and over thirty 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 five successful live births in her life, including her own children.

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 received a blood transfusion or a blood product in the last six months.

7-     Individuals or couples may obtain the service of a surrogate through an ART bank, which may 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.

8-     A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register at the hospital or such medical facility in her own name, clearly declare herself to be a surrogate mother, and provide the name or names and addresses of the person or persons, 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.

9-     If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at 27 most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple.

10-   The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as parents.

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, and the refusal to do so shall constitute an offence under this Act.

12-   Subject to the provisions of this Act, 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 Department of Health Research, except by an order of a court of competent jurisdiction.

13-   A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.

14-   No assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person.

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.

16-   In the event that the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as such surrogate.

17-   A surrogate mother shall be given a certificate by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them.

18-   A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple/ individual. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.

19-   A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, 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 34.2, till the child / children are delivered to the foreigner or foreign couple or the 28 local guardian. Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child within one months of the birth of the child. During the transition period, the local guardian shall be responsible for the well-being of the child. In case of adoption or the legal guardian having to bring up the child, the child will be given Indian citizenship.

20-   A couple or an individual shall not have the service of more than one surrogate at any given time.

21-   A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate.

22-   Only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART clinics shall receive or send an Indian for surrogacy abroad.

23-   Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the fetus during pregnancy and the child after birth, until the time the child is handed over to the designated person(s).

24-   The commissioning parent(s) shall ensure that the surrogate mother and the child she deliver are appropriately insured until the time the child is handed over to the commissioning parent(s) or any other person as per the agreement and till the surrogate mother is free of all health complications arising out of surrogacy.

Many Intended Parents are blessed to find their Surrogate Mother through commercial International Surrogacy. There can be complications involved with International Surrogacy. India is currently using the (ART) Regulation Bill, to discourse the parental rights of the Surrogate Mother be left anonymous. Privacy safeguards not only her, but her own family and the baby conceived by Surrogacy.

Intended parents should remain loyal and educated on their own countries' laws.  Intended Parents who select an International Surrogate need to fulfill all laws that apply. Surrogacy in India has become widely recognized and Intended Parents and Surrogate Mothers can experience generally positive outcomes.

Gestational Surrogacy in India is gaining ground in aiding Intended Parents world-wide. Traditional Surrogacy is legally not permitted in India.

On average a Surrogate Mother in India earns between six and ten thousand dollars. With affordable surrogacy costs combined with the casual legal environment India is a popular Surrogacy destination. 

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