Surrogacy - Laws and Rights

Employment Rights for Surrogate Parents

Legal landscape surrounding surrogacy in India is cultivated on child-protection perspective. It was the day in 2002 on which surrogacy was legalized in India, when legal authorities started striving to push the sector on legal tracks.

India is abode for thousands of surrogate mothers, who are bearing children for Indian as well as foreign childless couples. The sector has widened its horizon in years, adding new criterion to safeguard the rights of surrogate mothers in India, recipient couples and the children born through surrogacy.

In a stride to ensure rights to them, the Madras High Court held that a woman who had had a child through surrogacy was entitled to maternity leave on March 5, 2013.

It was when a mother, who had child through surrogacy with the consent of her husband, after her 20-year-old son was killed in a road accident in 2009.  She applied for maternity leave to look after the new born after the surrogate mother gave birth to a girl baby in February 2011.  She also applied to include the child under the family medical insurance scheme. However, her employer rejected the application, on the ground that there was no provision in the rules for granting leave to those who have a child through surrogacy. 

Later, the Judge, Justice K Chandru said, "Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognized by the Central government, therefore, the petitioner is entitled for leave.”

"This court does not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement," the Judge observed.

The mother was granted leave on the same terms applicable to those who had become parents via adoption. Also, the employers were ordered to add the child to the insurance scheme.    

Rights of Children Born Through Surrogacy in India

In surrogacy, the rights of child/children born are to be respected without discrimination of any kind including birth or other status.  While this provision was originally intended to protect illegitimate children, its inclusiveness suggests a generous and expansive application, including children born of surrogacy.

Under one of the seven guidelines issued by Ministry of Home Affairs, New Delhi pertaining to surrogacy in India, the foreign couple would require ‘exit’ permission before their return journey from India and would need to carry a certificate from concerned ART clinic regarding the fact that child/children have been duly taken custody by the foreign couple and the liabilities toward the India surrogate mother are fully discharged as per agreement. A copy of birth certificate(s) of surrogate child/children will be retained by Foreigner Regional Registration Office (FRRO)/Foreigners Registration Office (FRO) along with photocopies of the passport and VISA of the foreign parents.

Adoption of child under Indian Laws

Also, the intended parents can apply for adoption under the Guardian and Wards Act. As per the provisions the foreign citizens and NRIs are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age. Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and procedures in the country of their residence. This must be carried out within two years of the individual becoming a child’s guardian.

But as per Indian Laws pertaining to adoption the parents can’t chose a specific child for adoption. Also the ICMR guidelines under Guideline 3.10.1 require the intended parents to adopt the child if through genetic fingerprinting they can’t establish the biological link between the child and the intended parents.

Dr Neeraj Pahlajani