Surrogacy - Legal FAQs Part-2

What are legal rights of intended parents on child born through surrogacy? 

Indian Council of Medical Research (ICMR) guideline 1.2.33 - the surrogate mother should not be biologically connected to the child. The Indian Law on surrogacy recognises the intended mother only as the legal mother in surrogacy arrangements.

Guidelines 3.10.1 and 3.16.1 make it very much clear that the intended parents only would be the legal parents of the child with all the attendance rights, parental responsibility etc.

Guideline 3.5.4 states that the surrogate mother shall not be the legal mother and the birth certificate shall be in the name of the genetic parents.

Guideline 3.5.5 provides that the surrogate mother shall relinquish in writing all the parental rights over the child. India is very soon going to enact its legislation on the field of Assisted Reproductive Technology.

What does Indian law say about legal father of a child?

The child born through surrogacy is biologically related to the intended father. Therefore, the intended father is the legal father under Indian law provided the child so born should not be biologically connected to the surrogate mother.

Under ICMR guideline 3.5.5 the donor shall be bound to relinquish all the parental rights over the child so born, thus making the intended father only as the legal father of the child.

What if the surrogate mother refuses to hand over the child/children to intended parents?

Under Indian law, the legal rights of intended parents opting for surrogacy in India are protected. If the surrogate refuses to hand over the child, the intended parents can seek legal help on basis of contract. It should be clearly mentioned in the contract that the child/children born out of surrogacy shall be the legal children of the intended parents and that the surrogate shall have no rights over the child/children.

Does Indian law make any provision for the child if the country of intended parents refuses to allow the child?

Under the third guideline of Indian Ministry of Home Affairs, New Delhi issued recently, the couple commissioning surrogacy should be in possession of letter from embassy of foreign country in India or Foreign ministry of the country stating two things clearly, first the country recognizes surrogacy and second the child to be born to commissioning couple through the Indian surrogate will be permitted entry into the country as their biological child/children to the commissioning couple.

However, the intended parents can surrender the child but once surrendered the child would be given in adoption and the intended parents loose the rights over the child.

Are there any limitations for couples seeking surrogacy in India?

No, the surrogacy can be sought by any couple who are medically incapable or undesirable to carry a baby to a term. Therefore, couples wanting to have their own children and cannot have it naturally can opt for surrogacy arrangements.

Also, single parent or couples married for less than two years are not eligible to commission surrogacy in India.

The Indian law does not recognize gay marriages. So, only opposite sex couples, whose marriage has sustained more than two years would be eligible to commission surrogacy.

What is the procedure for adoption under Indian law?

Foreign citizens and NRIs need to formally adopt their child born through surrogacy in India according to the adoption laws and procedures in the country of their residence under the Guardian and Wards Act, 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age.

Also, the parents cannot choose a specific child for adoption under Indian Laws pertaining to adoption.

Dr Neeraj Pahlajani