Legal Consideration for Surrogacy in India
There will be an agreement between intended parent and the surrogate, which clearly signifies the meeting of the mind of both parties, their intention, their thoughts and action.
As such there is no law with regard to surrogacy in India, so it's only the agreement which is the the legal consideration and foundation of the interests of both the parties to surrogacy. So surrogacy agreement is the only consideration and will not be held voidable in the Indian court of law. Surrogacy agreement is a very sensitive and important in medical issue, should be drafted and reviewed by experienced legal practitioner only.
The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE RECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.”
The following observations had been made by the Law Commissions:-
- Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
- A Surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
- One of the intended parents should be a donor as will, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
- Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents(s) without there being any need for adoption or even declaration of guardian.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parents(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
- The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian Conditions.
International Surrogacy Agreement
As the name defines that this agreement could be enforced in both countries, means if the intended parent are from some other country and surrogate mother is from India, so it is important that agreement could be very much enforced in India and intended parent country.
It's not a simple situation where surrogate mother is from India and couple who want to be parent are from some other country. On this agreement the nationality of the surrogate child also depends upon. so agreement should be accreted accordingly that it should be enforced in the country of intended parents.
There are few important factors which should be very much clearly mentioned in the agreement.
- Name and details of the both the parties i.e. surrogate mother and intended parents, in the agreement.
- Intentions and interest of both the parties should be clearly mentioned into it.
- Agreement should represent clear intentions, compensation clause, motherhood & paternity
- Settlement of compensation, in case of any mishappening of the surrogate
- Jurisdiction involved for any kind of dispute arises out of the agreement
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