- 19-Apr-2025
- Healthcare and Medical Malpractice
In surrogacy arrangements, the question of whether intended parents can be present during the surrogate’s delivery is both emotionally significant and legally complex. In India, this decision is influenced by a mix of legal provisions, hospital policies, the surrogacy agreement, and the best interests of the surrogate mother and the child. The Surrogacy (Regulation) Bill, 2020 provides a legal framework for surrogacy practices but leaves some aspects, like the presence of intended parents during delivery, to be decided on a case-by-case basis.
a. Surrogacy (Regulation) Bill, 2020:
The Surrogacy (Regulation) Bill, 2020 mainly focuses on regulating the process of surrogacy, ensuring that it is ethical, non-exploitative, and protects the rights of the surrogate mother. However, it does not specifically address the presence of intended parents during childbirth. The law ensures that intended parents have the legal right to the child if they have a valid surrogacy agreement in place and if the intended mother (or father, depending on the circumstances) is legally recognized as the parent after the birth.
b. Medical and Hospital Policies:
The ability of intended parents to be present during the birth largely depends on the policies of the hospital or clinic where the surrogate is delivering. Many hospitals are supportive of the intended parents being present to witness the birth and to immediately establish a bond with the newborn. However, some hospitals may have restrictions due to medical protocols, privacy concerns, or the emotional well-being of the surrogate mother. For example, if the surrogate mother wishes to have a private birth experience, her preferences may take precedence.
c. Surrogacy Agreement:
The surrogacy agreement between the intended parents and the surrogate mother may include clauses that specify whether the intended parents will be allowed in the delivery room. This agreement is legally binding and can outline the expectations and rights of both parties in relation to the birth process. The surrogate mother’s consent plays a critical role here; if she does not feel comfortable with the intended parents being present, the agreement may need to be renegotiated.
Several factors influence whether the intended parents can be present during the surrogate's delivery:
a. Emotional Support:
The presence of the intended parents during childbirth is often seen as an emotional support system for the surrogate. Many surrogates, especially those who are in close communication with the intended parents, may welcome their presence as part of the collaborative and supportive nature of the process. The intended parents also benefit from immediate bonding with the child and can start the process of parental recognition from the moment of birth.
b. Health and Well-being of the Surrogate:
The health and comfort of the surrogate are the primary concern during childbirth. If the surrogate is at risk of complications, her medical team may limit the presence of others in the delivery room, including the intended parents. Some surrogates may prefer privacy, and in such cases, hospital policy and surrogate preference are respected.
c. Medical Risks and Privacy Concerns:
In certain high-risk deliveries, the hospital may limit access to the delivery room, prioritizing the safety of both the surrogate and the child. Privacy laws and hospital regulations could prevent anyone other than medical staff from being present, including the intended parents.
d. Legal Precedents:
Legal precedents in India generally allow the intended parents to take legal custody of the child immediately after birth, provided there is a surrogacy agreement in place and the necessary consent from the surrogate mother. However, these legal aspects do not necessarily dictate who can be present at the birth itself.
a. Immediate Custody of the Child:
Once the baby is born, intended parents usually take immediate custody of the child, subject to the validity of the surrogacy agreement and the parental rights. If both parents are legally recognized as the child’s parents, they may take their newborn home immediately or after the necessary legal paperwork (such as birth registration) is completed.
b. Birth Certificate and Parental Rights:
After the birth, the birth certificate typically names the intended parents as the legal parents of the child, especially if the surrogacy agreement was established and followed according to the law. This is part of ensuring that the intended parents' rights are recognized and the surrogate mother is not legally regarded as the child’s parent.
c. Emotional Impact:
The emotional bond formed between the intended parents and the newborn during the delivery process is seen as vital, especially for psychological reasons. For many intended parents, witnessing the birth provides a sense of closure and fulfillment in their journey to parenthood.
Example 1: A couple enters into a surrogacy agreement with a surrogate mother. The surrogate has a healthy pregnancy and is due to deliver in a private hospital. The hospital policy permits the intended parents to be present in the delivery room, and the surrogate mother has given her consent. The intended mother is present during the birth, cuts the umbilical cord, and the child is handed over to her immediately after birth.
Example 2: In another case, the intended parents are part of a surrogacy arrangement where the surrogate mother does not want anyone in the delivery room other than the medical staff. Despite the intended parents’ desire to be present, the surrogate’s wishes are respected, and they wait in the hospital waiting room. After the birth, they are legally handed the child as per the surrogacy agreement.
The presence of intended parents during the surrogate’s delivery is generally allowed in India but is influenced by several factors such as hospital policies, the surrogate’s preferences, and the terms of the surrogacy agreement. While the Surrogacy (Regulation) Bill, 2020 doesn’t specifically address this issue, the general legal principle prioritizes the rights and well-being of both the surrogate mother and the child. The intended parents are typically granted immediate custody of the child after birth, but their presence in the delivery room is subject to the mutual agreement and conditions set forth by all parties involved.
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