“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.
International Surrogacy Agreements
International Surrogacy Agreements can be enforceable in dual countries. With the Intended Parents coming from abroad and taking up surrogacy in India, it is important that the surrogacy agreement is compatible to the laws of India and theHome
Land of the Intended Parent.
It is a quite a legal complex situation where the surrogate is an Indian National and the Intended Parents are from abroad. In such cases, the Intended Parents have to make sure that the surrogacy agreement is enforceable according to the laws of their land as well. These agreements shall have impact over the nationality of the surrogate child. Where this agreement is void or voidable according to the laws the land of the Intended Parents, the agreement shall go unvalued and the surrogacy agreement loses its sanctity. This questions the validity of the surrogacy arrangement as well.
CHECKLIST FOR EVERY SURROGACY AGREEMENT:
- Name and details of the parties to the agreement
- Why does the party to the agreement propose surrogacy
- Details about the surrogate
- 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?
- Does the agreement indicate clearly details with regard to the compensation in times of unexpected mis-happenings to the surrogate?
- Child no lien for dispute over the compensation
- 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?