What Are the Legal Formalities for Hiring a Surrogate in India?

Surrogacy in India is regulated by the Surrogacy (Regulation) Act, 2021, which defines the legal framework for the hiring of a surrogate mother. The law ensures that both the intended parents and the surrogate mother are protected and that the best interests of the child are considered throughout the surrogacy process. Legal formalities for hiring a surrogate are essential to avoid exploitation, ensure the safety of the surrogate mother, and define the rights of all parties involved.

Legal Formalities for Hiring a Surrogate in India

Eligibility of Intended Parents

The intended parents must meet certain criteria to be eligible to hire a surrogate:

• Married Heterosexual Couple: Surrogacy is only permitted for married heterosexual couples who have been married for at least five years.
• Indian Citizens or Overseas Citizens of India (OCI): The intended parents must be either Indian citizens or OCI holders. Foreign nationals are not permitted to enter into surrogacy arrangements under the current law.
• Medical Need for Surrogacy: The intended parents must prove that they require surrogacy due to medical reasons such as infertility, the inability to carry a pregnancy, or other conditions that prevent them from having a biological child.

Eligibility of the Surrogate Mother

The surrogate mother must meet specific health, age, and legal criteria:

• Age Limit: The surrogate mother must be between 25 to 35 years of age.
• Marital Status: She must be married and already have a biological child of her own, which ensures that she understands the emotional and physical aspects of childbirth.
• Health Requirements: The surrogate mother must be in good physical and mental health. She must undergo a thorough medical check-up to confirm that she is fit to carry the pregnancy.
• Consent: The surrogate mother must freely consent to participate in the surrogacy process, and her consent must be provided in writing, including agreement to the surrogacy agreement.

Surrogacy Agreement

A written surrogacy agreement between the intended parents and the surrogate mother is required by law. This agreement outlines the following:

• Terms and Conditions: It must specify the terms of the surrogacy arrangement, including compensation, responsibilities, and rights.
• Compensation: The agreement must clearly state the compensation for the surrogate mother, which can only cover medical expenses, insurance, and other related costs. Surrogate mothers cannot be paid for carrying the child, and the payment must not be exploitative.
• Parental Rights: The agreement must clearly define the parental rights of the intended parents. The surrogate mother waives any claim to the child after birth.
• Ethical Guidelines: The surrogacy agreement must adhere to the ethical guidelines laid down by the Surrogacy (Regulation) Act, 2021, and must not involve any form of exploitation of the surrogate mother.

Medical and Legal Procedures

• Assisted Reproductive Technology (ART): The surrogate mother must undergo assisted reproductive technology (ART) procedures at a fertility clinic that is registered with the National ART and Surrogacy Board.
• Embryo Transfer: The fertilized embryo is transferred to the surrogate mother after the ART procedure, and the pregnancy is monitored by medical professionals.
• Parentage and Birth Certificate: Upon birth, the intended parents will be recognized as the legal parents of the child. The surrogate mother will not have any legal rights over the child. A birth certificate will be issued in the names of the intended parents.

Surrogacy Clinic and Registration

The surrogacy arrangement must be carried out at a fertility clinic that is registered with the National ART and Surrogacy Board. This ensures that the clinic follows the ethical guidelines and medical protocols established by the law.

The intended parents and the surrogate mother must both sign up for the surrogacy arrangement with a registered clinic. The clinic must also provide legal counseling to both parties to ensure that the rights and responsibilities of all parties are understood.

Medical Insurance for the Surrogate Mother

The intended parents must provide medical insurance for the surrogate mother to cover any complications arising during the pregnancy or childbirth.

The insurance policy must be valid for the duration of the pregnancy and cover medical expenses and postpartum care for the surrogate mother.

Court Approval and Parental Rights

After the birth of the child, the intended parents must approach the court to get legal recognition of their parental rights. This is necessary to ensure that the intended parents are the child’s legal guardians.

The court will verify the surrogacy agreement and ensure that the process has been carried out in accordance with the law. Once the court approves, the intended parents will be granted the legal rights to the child.

Prohibition of Commercial Surrogacy

The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy in India, meaning that surrogate mothers cannot receive payment beyond the reimbursement of medical expenses. This is done to prevent exploitation and ensure that surrogacy arrangements are ethical and not financially motivated.

Regulation and Monitoring

The National Surrogacy Board and the National ART and Surrogacy Board monitor surrogacy practices across the country to ensure compliance with the law. These boards are responsible for enforcing ethical guidelines, protecting the rights of the surrogate mother, and ensuring that the best interests of the child are upheld.

Example

Ravi and Neha, a married couple in India, wish to hire a surrogate to carry their child due to Neha’s medical condition that prevents her from becoming pregnant. They approach a registered fertility clinic and undergo the necessary medical tests. After selecting a surrogate mother, they sign a written surrogacy agreement that details the terms, including compensation for medical expenses and insurance coverage. The agreement also outlines the rights of the surrogate mother and states that Ravi and Neha will be the legal parents of the child. The surrogacy process is carried out under the supervision of the fertility clinic, and after the birth of the child, Ravi and Neha receive the legal approval to adopt the child as their own.

Summary

The legal formalities for hiring a surrogate in India are outlined under the Surrogacy (Regulation) Act, 2021. Intended parents must be married, medically eligible, and either Indian citizens or OCI holders. The surrogate mother must meet specific criteria regarding age, health, and marital status. A written surrogacy agreement is required, which includes compensation for medical expenses and waivers of parental rights by the surrogate mother. Surrogacy must be carried out at a registered fertility clinic, and both parties must follow strict ethical guidelines. Commercial surrogacy is prohibited, ensuring that the arrangement is not exploitative. Legal parental rights for the intended parents are granted after court approval post-birth.