Women are known for their motherly instincts. But having those instincts is different from having a baby of their own. Not all women are lucky enough to carry their babies in their womb. But should that deprive them of being a mother? If you have a problem conceiving but want a biological baby, then Surrogacy is the solution. It is one of the greatest scientific inventions of the modern times, which have brought hope to millions of people.
Surrogacy is the process wherein a woman agrees to carry and give birth to a baby for a couple who wants to have a child. It is of four types:
- Traditional surrogacy: In this kind of surrogacy, the surrogate mother is the donor of the egg.
- Gestational surrogacy: The surrogate mother just carries and delivers the child. She is not genetically related to the child.
- Commercial surrogacy: The surrogate mother takes compensation for carrying the baby. Also, the parents need to bear the medical and other related expenses.
- Altruistic surrogacy: The surrogate mother does not accept any compensation for carrying and delivering the baby.
Surrogacy is a choice, but it has to be opted only if you have a medical condition such as uterus problems, repeated miscarriages, or IVF failures. Surrogacy requires legal advice before the go-ahead.
Commercial surrogacy is legal in India, but there are no proper regulations that govern it. The legal issues associated with surrogacy are complicated.
However, there are a few guidelines (1) put up by the Indian Council Of Medical Research (ICMR). These guidelines, published in 2005, regulate Assisted Reproductive Technology procedures. Before you plan to go for surrogacy, you need to know about the following legalities related to surrogacy and surrogacy laws in India.
- The surrogate mother has to sign a contract with the couple, whose child she is going to carry. The surrogacy contract will have terms that require the consent of the mother bearing the child, her husband’s and extended family members’ consent, procedures of insemination done artificially, compensation of all the expenses until full term, readiness to give the child after delivery to the commissioning parents. This arrangement cannot be made with the sole purpose of earning money.
- The sperm/ egg donor has to be one of the intended parents because the biological relationship lays the foundation for bonding with the child. It also reduces the chances of child abuse that is seen in adopted children. In the case of a single parent, the donor has to be the single parent himself or herself to go ahead with surrogacy.
- In India, the commissioning parents are recognized as the legal parents from birth as a result of the signed contract between the two parties. Currently, in most of the states, pre-birth orders are issued through the courts to place the names of the intended parents on the birth certificate right.
- The arrangement of surrogacy should be such that it provides monetary support for the surrogate child in the instance of death of one or both the intended parents or divorce of the intended parents or unwillingness of the parents to take up the responsibility of the delivered child.
- The surrogate child should be recognized as the legitimate child of the commissioning parents so that there is no need for adoption in the future or any declaration by the guardian.
- The surrogate child will have all the rights of a natural born child of the commissioning parents.
- The rights of privacy of both the donor and the surrogate mother have to be protected.
- Surrogacy that discriminates the sex of the baby is prohibited.
- The Medical Termination of Pregnancy Act, 1971 governs the abortion cases.
With surrogacy getting popular in India and attractive even for medical tourists, the Government of India has come up with the Surrogacy (Regulation) Bill, 2016. Introduced in the parliament in November 2016, the bill attempts to regulate this practice but making it altruistic only. It means commercial surrogacy will no more be allowed.
The bill proposes the following rules:
- The woman carrying the baby will not be paid any money, but her medical expenses and insurance will still be borne by the commissioning parents.
- Surrogacy will be allowed only for couples who can prove their infertility, and it should be certified by the respective District Medical Board.
- The couples will be issued an eligibility certificate if they fulfill certain criteria such as (2):
- They should be Indian citizens and are married for at least five years
- The women need to be aged 23 to 50 years and men 26 to 55 years
- The couple should not have a biological child of their own
- There are some rules for the surrogate mother as well:
- She needs to be aged between 25 and 35 years
- Be a close relative of the intending couple
- Should be married and have a child of her own
- She can be a surrogate only once in her lifetime
- Need to hold a certificate that she is medically and psychologically fit
The bill is yet to be passed in the parliament, which means it is yet to become an act.
The new rules intend to tighten the practice of surrogacy so that it is not randomly opted by just anybody. They aim at protecting the rights of the yet-to-be born child as well as the Surrogate Mother.
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