What claims does a surrogate have over the child?
In India the surrogate is not considered as the legal mother. As per ICMR Guidelines 2005, a surrogate mother cannot be genetically related to the child . She is legally and psychologically counselled that she will not be having any rights over the child. Her rights and obligations towards the intended parents as well the child are formulated in the gestational surrogacy agreement. Moreover, a child born through surrogacy shall be presumed to be the legitimate child of the intended parents/s and shall have all the legal rights to parental support, inheritance and all other privileges which a child born naturally to the intended parents/s would have had.
Who is the legal mother of the surrogate child under Indian law?
As per the Indian Council of Medical Research (ICMR Guidelines) the surrogate mother should not be biologically connected to the child (Guideline 1.2.33).The Indian Law recognises the Intended mother only as the legal mother in surrogacy arrangements. Also 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. Also 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. 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. The Proposed act also has the same favourable provisions.
Who is the legal father of the surrogate child under Indian law given that the surrogate mother is widowed and the sperm derives from the intended father.
Indian law doesn’t put any bar on opting for donor sperm or eggs. In cases where the child is biologically related to the intended father the intended father only would be the legal father provided the child so born should not be biologically connected to the surrogate mother. In such a scenario the donor egg should be used and the donor under guideline 3.5.5 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 as per Indian law.
Is there are any requirement for a court application to be made in India for a pre-birth order and a post-birth order such as is required in some other nations?
No, there is no requirement to make a court application for pre-birth order or post-birth order in India. However there are some countries which require us to obtain the declaration decree for the intended parents. In case the country of intended parents requires obtaining a court decree getting themselves declared as the legal parents the same can be obtained by applying to Indian Courts under the Code of Civil Procedure 1908.
What would be the legal position under Indian law if the surrogate mother changed her mind upon birth and refused to hand over the child to intended parents?
However such instances have not been witnessed in the Indian scenario but still if a situation like this arises then the surrogacy contract can be the saviour. The contract must clearly state 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. The said contract can then become the basis of legal action against the surrogate mother also the law pertaining to surrogacy i.e. ICMR Guidelines also support the intended parents only as the legal parents.
Does the child have the right to know the identity of the surrogate mother?
As per the prevalent ICMR guidelines, a child born through ART has a right to seek information about his genetic parent/surrogate mother on reaching 18 years of age. But information relating to the name and address (the personal identity of the gamete donor or the surrogate ) is excluded from it .Parents are not obliged to provide the information on their own when the child turns 18 years but no attempt must be made to hide it from the child should an occasion arise when this issue becomes important for the child.
What would happen if the intended parents refused to take responsibility for the child after the birth?
The Indian Law makes it mandatory for the intended parents to take the responsibility of the child thus born, and till now there have been no cases witnessed where the intended parents have refused to take their child & this status necessarily emanates from the view that why would a couple not accept the child for whom they have borne so much of pain. Even if in case the Intended Parents refuse to take the responsibility of child then their refusal can be challenged in the court on the basis of the surrogacy contract signed by them. Also the surrogate mother and the state shall in no way be responsible to take the responsibility of child. The ICMR Guidelines which at present are the governing guidelines for assisted reproductive technologies make no specific provision for this however the new proposed Assisted Reproductive Technology Act 2008 under Sec 34(11) makes it mandatory for the intended parents to accept the child irrespective of any abnormality and a refusal to do so would constitute an offence.
What would happen under Indian law if the immigration authorities of the intended parent’s country refuse the entry of the child thus born out of surrogacy? Would the child be raised in an orphanage in India?
However such circumstances don’t arise often but still if problem arises then the recourse to court declaration by Indian courts is taken help to solve the problem unless the case is too complicated and the laws are too stringent. However in no way the child would go to orphanage. The responsibility to take care of child till the child is accepted as the national of the intended parents country lies with the intended parents solely. As per Indian Law you have to surrender the child to the state and once surrendered the child shall be given in adoption to anyone as the state chooses. The intended parents loose the rights over the child. The New proposed Assisted Reproductive Technology Act 2008 makes it compulsory for the intended parents to submit the documents stating that the child thus born will be allowed entry in the intended parents country.
In adoption cases, the adoption agency investigates the adopting party to see if they qualify as good parents. Is any such procedure followed for surrogacy?
According to ICMR guidelines Surrogacy and assisted conception should normally be considered only for patients for whom it would be physically or medically impossible/ undesirable to carry a baby to a term. Thus, in a way only those patients who are longing to have their own children ad cannot have it naturally or physically should be enrolled for surrogacy arrangements. Moreover, the emphasis should be laid on giving legal, medical and psychological counseling to the parents as well as surrogate.
Can the intended parents apply for adoption of the child under Indian law?
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.