We help childless couple and the surrogate mother arrive at a legally binding agreement, enabling them to enter into the surrogacy arrangement with confidence.
Independent Review of Surrogacy agreement to ensure that your rights are protected and the agreement confirms with the requirements of the Indian law.
We practically advise businesses and childless about the various complicated legal issues surrounding surrogacy and other aspects of fertility law.
Indian Surrogacy Law Centre is the only specialist independent legal consultancy firm in India specialising entirely on the law relating to human reproductive sciences, surrogacy laws and fertility laws. We help childless couples from all over the world to navigate through the dark emotional passages of surrogacy, egg donation and embryo donation.
We are pioneers in the legal fields relating to assisted reproductive technology procedures such as IVF, surrogacy, third party donors and embryo donations. The firm has an extensive practice with regard to international surrogacy arrangements and has been helping childless couples from all over the globe on intricate private international law issues.
Indian Surrogacy Law Centre was founded in the year 2008, at a time when the Indian legal fraternity was largely ignorant of the legal issues pertaining to the fertility law. The firm was aimed at developing a center of legal excellence in the reproductive sciences, more specifically, the international law issues that arose therefrom.
We have been part of the niche field of fertility law even prior to its inception in India. Indian Surrogacy Law Centre has represented an array of clients, including single, gay and straight intended parents, Indian surrogate mothers and fertility clinics across the nation. We have always used a differential approach in all our working and have been involved in high quotient matters.
Mr. Hari G Ramasubramanian is the Chief Consultant at Indian Surrogacy Law Centre. He is a new generation legal consultant with extensive practice on new science developments. He has created a niche practice for himself by concentrating on the fast developing laws pertaining to assisted reproductive sciences such as surrogacy and other IVF issues. He has an exclusive practice specialising in surrogacy laws. He has addressed Indian and International Forums on surrogacy laws in India. He has authored several articles on surrogacy laws in India. He has obtained the first parental order in India for a single parent who achieved parenthood through surrogacy.
“Surrogacy Agreement” is an agreement between the intended parent and the Surrogate, which expresses their necessity and fully volitional desire to opt for Assisted Reproductive Technique of Surrogacy, whereby the surrogate shall bear and gestate the embryo of the Intended Parents.
“Agreements” generally means the meeting of minds i.e. the parties to an agreement understanding each other’s intention at the point of entering into the agreement and there is a total synchronization of thought and action.
Since there is no specific law with regard to Surrogacy or Assisted Reproductive Technique in India, ‘Surrogacy agreement’ is the only foundation which governs the parties to Surrogacy. Therefore the Intended Parents are required to devote attention to have a perfect agreement in place, so that the surrogacy agreement is not held void or voidable in the court of law. As in every agreement, each party to a surrogacy agreement should express his/her purpose and situations, the need for surrogacy, free will of the surrogate, details about the surrogate and the terms on which the surrogate agrees to gestate the child etc. The terms chosen to be used in the agreement play an important role in determining the meaning accrued according to the context. Surrogacy agreement, being a very sensitive medical issue, should be drafted by a well experienced hand in the field. Since this agreement is a document which validates the birth of a child, it should be made sure that the agreement is be able to meet the worst twist of situations.
CHECKLIST FOR EVERY SURROGACY AGREEMENT:
-Why does the party to the agreement propose surrogacy
-What is the exact intention between the parties at time of entering into the agreement
-What is type of surrogacy? Gestational, traditional, altruistic, commercial?
Is the question of motherhood resolved?
-What is the mentioning in the agreement about the paternity?
-Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
-Is the agreement a proper representation of your intentions?
-How is the compensation clause drafted?
-Stages for Compensation
-Does the agreement indicate clearly details with regard to the compensation in times of unexpected mis-happenings to the surrogate?
-Child’s custody with the Intended parents alone is legal custody
-How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?
-What is the jurisdiction for the disputes arising out of the agreement?
Every Surrogacy contract is required to have many essential ingredients which are to be agreed between the parties. Only agreeing to these ingredients makes that piece of paper you sign a surrogacy contract. The legal review of the surrogacy contract is done by a competent Indian Lawyer enrolled with the Bar Council of India, who possesses exemplary knowledge in the Indian Surrogacy law. Your contract is reviewed to make sure that the terms you have agreed upon between the parties constitute an understanding resulting in a surrogacy agreement as per the Indian Laws.
This service comes in handy for many couples who are provided with a standard surrogacy contract by the hospitals or the agencies. In many occasions, the agencies or the hospitals have a standard copy of surrogacy contract which is given to every Intended Parent who has signed up for their services. This surrogacy contract is required to be verified to make sure that it contains all the essentials of surrogacy contract. To understand the importance of this service, it is first required to know what a surrogacy arrangement is.
Surrogacy arrangement is merely an agreement or an understanding arrived between the surrogate mother and the intended parents. This understanding is written down in the form of a contract. Therefore the rights and liabilities of the parties are determined by the contents of that surrogacy contract. The parties cannot on a later date, after signing the contract, claim that the intention of the parties was any different from what is mentioned in the surrogacy contract.
On vetting of the surrogacy contract, a vetting report called “Review of the Surrogacy Contract” would be prepared. This report gives you a clear, comprehensive and frank opinion on whether the contract actually contains all the essentials of the surrogacy contract. The report shall further explain all the rights and liabilities of the parties. Recommendations shall also be made for the better enforceability of the contract in the international arena.
IMPORTANCE OF CONTRACT VETTING
It is to be understood that a surrogacy arrangement is merely a contract between the intended parents and the surrogate mother. The parties understand between themselves certain clauses which constitutes a surrogacy arrangement. Without the understanding between the parties of the essential ingredients, a surrogacy arrangement would not be made.
PREVENTING A MISTAKE
We have dealt with a number of cases where the intended parents wish to rectify the errors in the surrogacy agreement, after the birth of the child. Time is essential factor in the surrogacy contract. The errors that have crept into a surrogacy agreement at the time of signing of the agreement can never be rectified at a later point of time. The intention of the parties at the time of signing of the contract is of utmost importance. So, it is to be kept in mind that the Surrogacy Contract is required to have those essentials, failing which, you embassy might reject your surrogacy arrangement.
Unlike in many other countries, surrogacy agreements are enforceable in India. There is no law in India yet which actually restricts the legal enforceability of the surrogacy contract. Therefore, the contents of the contract actually determine the rights of the parties, and can also be enforced in a court of law.
Parental Orders is a judicial order obtained from a court of law after the birth of the child through surrogacy. The Parental Orders ensures that the rights of the childless couple remain intact and the surrogate mother relinquishes all rights over the child.
What is surrogacy?
Surrogacy is an arrangement wherein a women agrees to act as a surrogate mother for a couple or a single parent. The surrogate shall carry a child belonging to the intended parents to the term with the promise that she shall hand over the child to the couple on the birth of the child. Surrogacy may be altruistic or commercial with regard to the monetary aspects. Likewise, the surrogate mother may be genetically related to the child in cases of traditional surrogacy. In cases of gestational surrogacy, the surrogate mother would not be genetically related to the child.
What is commercial surrogacy?
In a commercial surrogacy arrangement, the surrogate mother would be paid a compensation for her time and effort for carrying the child. The payment is made to the surrogate mother on an understanding that she shall carry the child to the term and then hand over the child to the Intended Parents. This understanding arises out of a contract between the surrogate and the Intended Parent. All commercial aspect with regard to surrogacy is best to be decided between the surrogate and the Intended Parents.
What is the legal position in India with regard to commercial surrogacy?
The Indian Council of Medical Research, Ministry of Health and Family Welfare, Government of India has published National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in the year 2005 which held that commercial surrogacy legal and has established guidelines regulating surrogacy arrangements. Also, The Supreme Court of India has in the case of Baby Manji vs. Union of India (Japanese Baby Case) held Commercial Surrogacy to be legal in India. In the year 2010, the Assisted Reproductive Technologies (Regulation) Bill, 2010 was introduced, which is still in the drafting stage. The Assisted Reproductive Technologies (Regulation) Bill, 2010 is still in the stage of a bill and there is no legal enforceability.
What is a Surrogacy Agreement?
Surrogacy agreement is a written document executed by the surrogate mother and the intended parents that outlines the rights and duties of each party towards each other. The surrogacy agreement should contain all aspects of their relationship between the intended parents, surrogate mother and the child. In case of commercial surrogacy, the contents of the agreement must include the payment details to the surrogate mother.
In simple words, the agreement demarcates the liability of the surrogate and intended couple upon which either of the parties to the agreement has agreed upon. The Surrogate and intended couple are required to sign the surrogacy agreement after clearly understanding the contents of the agreement.
What is the purpose of surrogacy agreement?
The purpose of the surrogacy agreement is to allow each party to the agreement to state purpose, intentions, rights and responsibilities for each party of the agreement. The agreement must clearly state that the surrogate does not intend on parenting any resulting children and does not wish to have physical or legal custody of any resulting children.
What are the 'recommended standards' for choosing a Surrogate Mother?
Indian Surrogacy Law Centre recommends the following pointers for choosing of the right surrogate mother:
a) The surrogate needs to be a practical person who is completely aware of every possibility with regard to surrogacy. For this purpose, a proper medical and legal counselling to the surrogate would be recommended.
b) The surrogate should understand that surrogacy is not a typical pregnancy procedure and there are more issues connected to it which are more complicated.
c) The surrogate also needs to understand that the possibility of conceiving through this method is not that simple and not easy. More importantly, that getting pregnant is something which is not entirely in her hands.
d) The Surrogate must clearly understand that the process is very time consuming and that it takes more than a year. The surrogate should not be totally dependent on that money which is coming through surrogacy, as the surrogate may become financially locked until the receiving of the entire compensation.
e) The surrogate should realise that she will be given a lot of medication and injections during the term of the pregnancy and she should be ready to go through these physical pains.
f) The spouse of the surrogate must not only accept the process of the surrogate taking part in the surrogacy, but he should also be supportive of the process. It has been understood that the surrogate may be facing undesirable family problems in cases where she volunteers without the knowledge or acknowledgement of her spouse. More importantly, the surrogate spouse should have been informed about all the possibilities of the surrogacy.
g) The surrogate should be aware of selective reduction. The surrogate mother must clearly understand that conceiving of more than one baby is an inherent possibility and there are high chances for it to take place. In such cases, selective reduction would be a normal process. The surrogate mother should accept selective reduction, if the need arises. Multiples are very common in surrogacy and it cannot be assumed that it cannot happen in your case.
h) The surrogate should fix her own fees to see what according to her is the proper remuneration according. In most of the cases, this would also enable the Intended Parents to understand the affordability of a candidate.
i) It is most appropriate that the surrogate has had prior proven pregnancies. The whole procedure of surrogacy is extremely expensive for the Intended Parents. The Intended Parents take up all the expenses incurred in this lengthy procedure. It has to be taken into consideration that where the surrogate has already had a proven pregnancy, it would enhance her quality as a surrogate as she has proved her capacity as a child bearer already.
j) Surrogate might be facing unexplainable hardship in parting with the child which she had borne for the term. In such cases, it is most advisable that the surrogate has already got children to whom she can return back, after handing over the child to the Intended Parents.
k) Though the surrogate may be ready mentally for handing over the child, the imbalance of hormones which takes place during the time of pregnancy might bring in mood swings for the surrogate and might destruct all her mental stability. In such cases, it is most advisable that the surrogate mother has already got childrens to whom she can get back after the surrogacy.
l) There exists a minor risk that the surrogate mother might never be able to conceive again after undergoing surrogacy. It is most advisable that the surrogate mother has already given birth to children, so that she would not feel exploited in case the surrogacy leaves behind a situation where she can never bear a child again.
m) The surrogate mother should be a woman of courage who will be able to face independently various constraints which are emotional as well societal.
n) The surrogate mother must take her own independent and autonomous decision to act as a surrogate and to bear the child. The decision to act as a surrogate should not come out of compulsion or out of coercion. This is most important in country like India where woman are not independent to make decisions.
The experience of motherhood is a wonderful experience and the surrogate should wilfully come forward for doing it. It is only then that the Intended Parents as well the surrogate goes through the process conveniently and comfortably.