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Surrogacy in India Surrogacy in India
Web-blog of Indian Surrogacy Law Centre
  • Jan Balaz case Jan Balaz case
    supreme court of india rules german couple must adopt the child born through surrogacy and birth certificate shall carry name of surrogate mother
  • Queensland decriminalizes Altruistic Surrogacy Queensland decriminalizes Altruistic Surrogacy
    Queensland passed the was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.
  • Michigan couple lose their child to surrogate mother Michigan couple lose their child to surrogate mother
    Amy Kehoe and Scott – a couple from Michigan were trying for a child. Amy underwent miscarriage thrice and was medically advised surrogacy. The couple had found a surrogate mother named Shelly Baker from Detroit. Shelly Baker had four children and had already been a surrogate mother twice. The couple entered into a surrogacy agreement [...]
  • Indiana court to decide in vitro baby’s legal mother Indiana court to decide in vitro baby’s legal mother
    The Indiana Court decided a very interesting point on surrogacy which is quite on debate all over the world. The question is who should be considered to be the legal parents of the child born through surrogacy. A 11 month old baby referred to as ‘Infant R’ in Court Documents was conceived by In-Vitro Fertilization using [...]
  • US Consulate denies American citizenship to child US Consulate denies American citizenship to child
    I learn from a news report, Times of India, Chennai Edition dated January  25th 2010 of a strange case involving an American Couple where the American Consulate had denied citizenship to a child which was not genetically related to the Intended Mother. The intended mother reportedly had taken recourse to adoption for taking her [...]
  • Parliament soon to enact Surrogacy Law Parliament soon to enact Surrogacy Law
    The Solicitor General of India, Mr. Gopal Subramanian had informed the Supreme Court that the Government is presently considering the legal and moral aspects of surrogacy in India, and the law on surrogacy is expected soon. The German couple is left with the only option of adopting the twins, so that they could be taken to Germany, where surrogacy is an offence but international adoptions are allowed. The couple’s lawyer Nageswara Rao said inter-country adoption was cumbersome and time-consuming and it would be another five-six months before the couple could take the children home legally. The Supreme Court reminded the Government of India that the children of Mr. Jan Balaz are already in India for almost two years now and that the Government needs to act speedy with regard to children's case. Mr. Gopal Subramanian also informed the court that he had sent a letter to the Union of India over the issue and that he expects a speedy returns for the same.
  • Updates on Jan Balaz Case Updates on Jan Balaz Case
    Mr. Jan Balaz, the petitioner in the case pending before the Supreme Court had submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The [...]
  • The Telegraph writes on Indian Surrogacy Law Centre The Telegraph writes on Indian Surrogacy Law Centre
    The Telegraph had written an article on surrogacy recently making reference to the work done by Indian Surrogacy Law Centre in the legal issues. The link to the article may be found here.
  • Updates on Jan Balaz Case Updates on Jan Balaz Case
    I am making this post partly from the Supreme Court of India. I flew down from Chennai to here for attending the case of Union of India vs. Jan Balaz. The case was posted before the Bench consisting of G S Singhvi and A K Ganguly. The Solicitor General of India, Mr. Gopal Subramanian unfolded India’s stand that India is unable to grant Indian Citizenship to a children merely for the purpose of taking them to their homeland. Moreover, he wanted Mr. Jan Balaz to unconditionally submit to the Apex Court’s Jurisdiction even if he gets outside India. Senior Counsel Mr. Rao said he shall undertake to fulfill all conditions as imposed by the Union of India in order to take his children back to his nation. The case is next posted for hearing on the 4th January 2010. There are lots of unanswered hitches which are to be decided by the Supreme Court of India. Meanwhile, Indian Surrogacy Law Centre is still deciding it’s modalities of contributing for this case. I shall write on this subject more when there is an improvement.
  • Updates Updates
    Guajrat High Court decides that Indian Surrogate Mother is the Legal mother of the child India’s First Suit for parental order was dismissed by the Civil Court at Anand decision Gujrat High Court Union of India Supeme Court of India.

    • India being the land for less costlier and less regulated surrogacy is now the most preferred destination for the reproductive tourists who opt for surrogacy to fulfil their dreams of motherhood. The ICMR guidelines provide a very encouraging picture for the reproductive tourists. The ICMR guidelines makes no actual distinction between an ‘Indian Intended Parents’ and an ‘intended parents from other countries.’ Adding to these advantages is India’s fast adaptation to newest scientific advancements happening in the medical field worldwide, renaming its name itself as one of the most favoured destination for cost effective medication in the whole world.
    The usual problems faced by the reproductive tourist are with regard to the post delivery complications in taking the child back to their own nation. The matters concern mostly the issues of paternity and nationality of the child born to an Indian surrogate. There is a conflict of private international law and almost every intended parent wants his/her child to be a national of that country where they belong.

    The main issues for consideration in this respect are:

    • What are the laws of the land of the Intended Parent governing surrogacy?
    • Whether surrogacy is permitted in the nation of the local parent?
    • Whether the laws of the land of the intended parents are applicable in India?


    Few embassies in India, for example Australian Embassy demand an order from the Indian Courts stating that one of the parents to the child is genetically related to the child, or that he/she is the natural parent of the child. For dealing with these issues, all it requires is absolute expertise and each and every hurdle is unique.

    The Non Indian Intended Parents will usually be falling in one of the categories from the right:


    LEGAL COUNSELLING FOR THE INTENDED PARENTS:

    Legal counselling is a very important aspect as it makes the Intended Parents as well as the surrogates aware of their various rights and liabilities. The Intended Parents need to understand the legal aspects of having a child through surrogacy and the legality of the birth of the surrogate baby.

    The right advice to the intended parents at the right time helps avert lot of irreparable damage. The intended parents will have to understand lot of issue which you will be undergoing in the days to come. You will be completely guided by our legal consultant in various issues such as the following:

    • What is surrogacy?
    • What is the law with regard to surrogacy in India
    • Finding the right surrogate
    • Possible consequences of surrogacy
    • Assessment of risk factors
    • Assessment of needs
    • Establishing the motherhood
    • Introduction to surrogacy agreements and deciding the best terms
    • Emphasizing the importance of making the surrogates aware of the legal issues
    • Other issues
    "Beaware than to be sorry."


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    LEGAL COUNSELLING FOR SURROGATE
    • Sourcing of Oocyte
    • Counselling to the Surrogate
    • Assessing of Needs
    • Screening Agreements
    • Oocyte retrieval Agreement
    • IUI agreement
    • Surrogacy agreements
    • Advice on Court Declaration
    • Litigation Strategist


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    SURROGACY AGREEMENTS

    "Surrogacy Agreement" is an agreement between the intended parents and the Surrogates, 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.

    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.

    "Agreements" generally means the meeting of minds i.e. the parties to an agreement understand each other's intention at the point of entering into the agreement and there is a total synchronization of thought and action.

    With regard to surrogacy, each party to a surrogacy agreement should express his/her purpose and situations, the need for surrogacy, about the surrogate and the terms on which the surrogate agrees to gestate the child etc. Any Surrogacy agreement should contain all the basics of the agreement, so that the interest of the parties protected. Moreover the agreement should also be able to meet the worst twist of situations. More importantly, the compensation clause should make specific provision for probable mishaps that might occur.

    CHECKLIST FOR EVERY SURROGACY AGREEMENT:

    • Name and details of the parties to 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 unexpected of 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?


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    SCREENING AGREEMENTS

    Screening agreement is the agreement which is entered into between the hospital/Intended Parent and the surrogate agreeing that the surrogate shall subject herself to all that it takes to impregnate herself by allowing the implantation of the embryo in her uterus. It is a very important and useful means to ensure that the surrogate does not, at a later date, release herself from her obligation after receiving the compensation. More importantly, the terms of compensation for procedural complexities should be predetermined.
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    EGG DONOR AGREEMENT / OOCYTE RETRIEVAL AGREEMENTS

    'Oocyte' means the female gamete (egg) present in the ovary. The oocyte is the human egg which when transfused with the male gamete produces the zygote, i.e. the fertilized oocyte.
    The egg donor agreement between the Intended Parents and the Donor is of great significance. The egg donor sends along with the egg her genes which are transferred to the surrogate baby. The egg donor might wish to enforce her relation with the child. There have been cases decided by the foreign courts where the surrogate has been granted visiting rights where the child was from surrogate's egg. Therefore, it is most important that the Intended Parents enter into an agreement so that all the transactions, the rights & liabilities and other terms of the payment are clearly written and therefore there wouldn't be any kind of difficulty in the future.
    It is to be kept in mind that the egg donor agreement between the hospital and the egg donor is limited to the liability of the hospital towards the surrogate and does not cover the interest of the Intended Parent. It is to be remembered in all the surrogacy transactions, wherever there is any error, the worst affected party is the Intended Party.

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    EGG DONOR AGREEMENT FOR TRADITIONAL SURROGACY

    In the case of traditional surrogacy, the egg for the zygote is contributed by the surrogate herself and therefore the child carries the genes of the surrogate mother. In the cases of traditional surrogacy, the intended parents should enter into an "egg donor agreement" as well as "surrogacy agreement" so that their interests are completely protected. It is most important that the surrogate should not demand the custody of the child at a later point of time. Moreover, the presumption under the Indian Evidence Act has to be specifically mentioned under the agreement.
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    SOURCING OF THE SURROGATE AND THE EGG DONOR

    Law Firms and the Semen Banks are the only two bodies authorized to act as a source for Oocytes and Surrogate Mothers as per the "Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005" released by the Indian Council for Medical Research, Ministry of Health and Family Welfare, Government of India.

    It has been specifically mentioned in Point No.3.9.2 as follows:
    "Law firms and semen banks will be encouraged to obtain (for example, through appropriate advertisement) and maintain information on possible oocyte donors and surrogate mothers as per details mentioned elsewhere in this document. The above organizations may appropriately charge the couple for providing an oocyte or a surrogate mother. The oocyte donor may be compensated suitably (e.g. financially) by the law firm or semen bank when the oocyte is donated. However, negotiations between a couple and the surrogate mother must be conducted independently between them."

    As per the guidelines issued by the Government of India, Assisted Reproductive Technology Hospitals have been specifically eliminated from being a source of gametes or surrogate mother. Further, ART Clinics should not take part in any commercial aspect of the surrogacy with regard to the compensation to be provided to the surrogate.

    Only Semen Banks or the Law Firms are the authorised bodies who are entitled to act as a source for surrogates or the Occyte. In our capacity as a Law Firm, we have come up with innovative solutions for the purpose of finding the right egg donor or the right surrogate to perfectly match your needs, in complete conformity with the guidelines for the ART Clinics in India. We undertake to source the right surrogate or the egg donor for you by means of making appropriate contacts with other institutions or by way of advertisements. It is the most recommended method by the ICMR Guidelines.


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    PRE-SURROGACY SERVICES

    Pre surrogacy Service takes care of all the issues that crop up before the surrogacy. The services shall cover all areas with regard to legal counselling with regard to the laws of the land of the Intended Parent as well as with regard to Indian Law. It also covers the drafting of the various agreements.

    The foreign Intended Parents are not aware of the hurdles they have to cross in terms of the Indian Laws. For example, there exists a conclusive presumption with regard to the paternity of the child in India, that the husband of the mother who bore the child is the father of the child. Secondly, with regard to the Birth Certificate the name of the parents should occur in the Birth Certificate. The intended parents must aware of these issues before opting for surrogacy in India.

    Being a complete Legal Solution Provider for the Surrogacy, we provide legal counselling for the Surrogate, in the interest of the Intended Parents.

    • Sourcing of Oocyte and Surrogate
    • Legal Counselling for the Intended Parents
    • Legal Counselling for the Surrogate
    • Surrogacy Agreements
    • Other Agreements


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    POST DELIVERY SERVICES

    Our Post Delivery Consultation shall cover advising relating to all legal formalities immediately after the birth of the surrogate child. The Post Delivery Consultation is of very high importance as it enables the Intended Parents to realise the issues involved in taking the child to their home land.

    Research on Law of Nationality of the Intended Parent's homeland
    Advising on Birth Certificate issues
    Acquiring the citizenship to the surrogate baby
    Research on Intended Parent's
    Arranging for travel document
    Advice on Court Declaration



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