1. What are the rights of a surrogate mother over the child born through the Assisted Reproductive Technology (ART) in India?
According to Indian Council of Medical Research (ICMR) guidelines of 2005, the surrogate mother is not the legal mother of the child as she is not genetically connected to the child. Before signing the gestational surrogacy agreement with the intended parents, the surrogate has been informed that she would have no rights on the child/children she bears for the couple.The intended parents have all the legal rights, inheritance and other privileges on the child born through surrogacy.
2. What would happen if the intended parents refused to take responsibility for the child after the birth?
The section 34(11) of the Assisted Reproductive Technology Act 2008 makes it mandatory for the intended parents to accept the child irrespective of any abnormality and a refusal to do so would constitute an offence. If the intended parents refuse to bear the responsibility of the child, then the surrogate can challenge their decision in court on the basis of the undertaking vowing that intended parents would take care of child/children born through surrogacy. Under the Indian Law, it is mandatory for the intended parents to take the responsibility of the child born through surrogacy. Secondly, the surrogate mother would not be responsible for taking responsibility of the child in any case.
The section 34(11) of the Assisted Reproductive Technology Act 2008 makes it mandatory for the intended parents to accept the child irrespective of any abnormality and a refusal to do so would constitute an offence. If the intended parents refuse to bear the responsibility of the child, then the surrogate can challenge their decision in court on the basis of the undertaking vowing that intended parents would take care of child/children born through surrogacy. Under the Indian Law, it is mandatory for the intended parents to take the responsibility of the child born through surrogacy. Secondly, the surrogate mother would not be responsible for taking responsibility of the child in any case.
3. Does Indian law allow the child to seek information about the
surrogate mother?
Under ICMR guidelines, the child born through surrogacy can
know about the surrogate mother/genetic parent only after turning 18. However,
the child is not given the information about personal identity of the surrogate
mother. Under the law, the intended parents should not make attempts
to hide the information about the surrogacy/surrogate mother after the child
turns 18 years of age and are not obliged to provide information on their own.
4. In India, does the intended couple need to get two separate orders (before and
after) the birth of the child through surrogacy?
No, the couple is not required to get two orders, i.e., pre and post order in India. In case, the intended parents want to obtain the certificate declaring them as the legal parents of the child, they can seek it from the court under the Code of Civil Procedure 1908.
Dr Neeraj Pahlajani
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