What Are the Rights of a Surrogate Mother Under Indian Law?

The rights of surrogate mothers in India have been a major concern for lawmakers, as the practice of surrogacy has often been subject to ethical and legal scrutiny. In response to these concerns, the Surrogacy (Regulation) Bill, 2020, seeks to ensure that surrogate mothers are protected from exploitation and are entitled to certain rights during the surrogacy process. The law provides comprehensive protection regarding medical care, compensation, informed consent, and post-pregnancy care.

Rights of a Surrogate Mother Under Indian Law

1. Right to Informed Consent

One of the fundamental rights of a surrogate mother is the right to informed consent. Under Indian law:

• A surrogate mother must be fully informed about the surrogacy process, including any potential risks involved.
• She must understand her medical rights, the expected compensation (limited to medical expenses), and the legal implications of carrying the child for the intended parents.
• The surrogate must voluntarily agree to participate in the surrogacy arrangement without any form of coercion or pressure from the intended parents or surrogacy agencies.

2. Right to Medical Care and Protection

Surrogate mothers are entitled to receive adequate medical care throughout the pregnancy:

• Pre-natal care: The intended parents are responsible for providing the surrogate with necessary medical treatments, check-ups, and any other care needed during the pregnancy.
• Post-natal care: The surrogate mother is also entitled to post-pregnancy medical care, including counseling and treatment for any complications that arise due to the pregnancy.

The ART clinics or the intended parents must cover all medical expenses incurred during the surrogacy process, and the surrogate’s health should be prioritized throughout.

3. Right to Compensation for Medical Expenses

Under the Surrogacy (Regulation) Bill, 2020, a surrogate mother is not allowed to be compensated beyond her medical expenses and insurance coverage. These are some of the key details:

• The surrogate is entitled to compensation that covers medical expenses, insurance during the pregnancy, and any lost wages due to the pregnancy.
• Commercial compensation, where a surrogate would receive large payments for carrying the child, is prohibited in India. All compensation must be reasonable and related to the costs of the surrogacy process.

4. Right to Privacy

A surrogate mother has the right to privacy in relation to her surrogacy arrangement:

• Her identity, medical details, and personal information must be kept confidential, and only the necessary parties (such as the intended parents and medical professionals) should have access to her information.
• The Surrogacy (Regulation) Bill, 2020 mandates confidentiality in surrogacy records to protect the surrogate mother from any form of public disclosure or exploitation.

5. Right to Refuse or Withdraw Consent

Before the pregnancy: The surrogate mother has the right to refuse or withdraw consent at any time before conception. She can decide not to participate if she changes her mind.

During the pregnancy: If the surrogate mother wishes to discontinue the pregnancy for any valid reason (health-related or personal), she is entitled to make that decision, subject to medical advisories.

Post-pregnancy: In case of any medical complications or physical distress after delivery, the surrogate has the right to seek medical care and counseling.

6. Right to Emotional and Psychological Support

Counseling: Surrogates are entitled to psychological counseling both before and after the surrogacy process to ensure they are emotionally prepared and supported.

The law requires psychological support for the surrogate to help her cope with the emotional and mental impact of carrying a child for another couple and the eventual separation from the child.

7. Right to Legal Protection and Status

Surrogate mothers have certain legal protections under Indian law:

• Legal status: The surrogate mother is recognized as the biological mother of the child until the birth certificate is issued with the intended parents’ names.
• In the event of any disputes or complications, legal support is provided, ensuring that the surrogate’s rights are not overlooked. If there is any breach of contract or unethical treatment by the intended parents or surrogacy agency, the surrogate mother has the right to seek legal redress.
• The surrogate is also entitled to legal protection against any form of exploitation, coercion, or abuse during the surrogacy arrangement.

8. Right to a Formal Agreement

Before the surrogacy process begins, a formal surrogacy agreement must be signed between the surrogate mother and the intended parents. This legally binding contract outlines the rights and responsibilities of both parties, including compensation, medical care, and the handling of any complications that may arise during the pregnancy.

The agreement also covers important matters such as post-delivery care, the right to withdraw consent, and the surrogate’s health and safety.

9. Right to Financial Protection and Insurance

The surrogate is entitled to financial protection during and after the pregnancy. This includes coverage of medical bills, hospital stays, insurance, and any unforeseen medical expenses.

Surrogates should also be entitled to health insurance during the pregnancy to cover any health risks that may arise during the process.

10. Right to an Ethical Surrogacy Arrangement

The law mandates that surrogacy arrangements must be ethical and free from exploitation. This includes ensuring that surrogates are not coerced into surrogacy, and they are provided with the necessary support throughout the process.

Surrogates must only be close relatives of the intended parents, ensuring that the relationship is built on trust and understanding, as opposed to a commercial transaction.

Example

Radhika, a 30-year-old married woman with two children, decides to become a surrogate for her cousin and his wife, who have been unable to conceive due to medical complications. Radhika is fully informed about the surrogacy process, and after signing a legal surrogacy agreement, she undergoes the necessary medical screenings. Throughout the pregnancy, Radhika receives all necessary medical care, including insurance for any unforeseen complications. She is compensated only for her medical expenses and lost wages during the pregnancy. After giving birth, Radhika receives post-pregnancy emotional support and psychological counseling to help her adjust. She also retains the right to withdraw consent if she decides to stop the pregnancy due to health risks.

Summary

Under Indian law, surrogate mothers have several important rights that ensure their well-being and protect them from exploitation. These include informed consent, the right to medical care and compensation for medical expenses, legal protection, psychological support, and the right to withdraw consent at any stage. The Surrogacy (Regulation) Bill, 2020 emphasizes the need for ethical surrogacy practices, ensuring that surrogates are treated with dignity, respect, and fairness throughout the process. Commercial surrogacy is prohibited, and surrogates are only compensated for their medical costs, not for carrying the child for profit.