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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.
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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."
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
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?
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
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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