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Surrogacy Law India
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Surrogacy: Defined

 

The Parents construct the Child biologically,
while the Child constructs the Parents socially.
 
The roots of surrogacy can be traced long back in Indian history. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born in Kolkata on Oct. 3, 1978. Since then the field of assisted reproductive technology (ART) has developed rapidly. But legally the laws related to surrogacy are still in the nascent stage. At present the agreement between the parties based on the ART Guidelines are the guiding force. The codified law is yet to be adopted and implemented. With the recent growth in the Intended parents opting for surrogacy here, India has become the much sought after surrogacy destination. With the acceptance of same sex marriages/union and the recognition of the basic human right to have family and children has given rise to surrogacy manifold. However, at the same time nations all across the globe are condemning commercial surrogacy as it results in commercialization of human reproductive system and co modification of children. For it’s various socio–ethical reasons, surrogacy has become a topic of deep interest amongst the government of different nations, medico-legal luminaries as well as public at large.
  
 EXPRESSIONS:
(a)       Surrogacy:     
Surrogacy is a method of reproduction whereby a woman (referred to as surrogate) agrees to carry a pregnancy and give birth as a substitute for the contracted party/ies. Surrogacy may be Natural (traditional / Straight) or Gestational.
 
(b)       Natural (Traditional/ Straight) Surrogacy:      
In traditional surrogacy the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner and thus the child that results is genetically related to the Surrogate mother. The child may be conceived via sexual intercourse, home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination), which is performed at a fertility clinic. Sperm from the male partner of the 'commissioning couple' may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the 'commissioning couple' are both females or where the child is commissioned by a single woman.
 
(c)       Gestational Surrogacy:          
In gestational surrogacy, a surrogate is only a carrier/female host and is not genetically or biologically related to the child. The Surrogate is implanted with an embryo that is not her own, and becomes pregnant with a child to which she is not the biological mother. After birth, the surrogate relinquishes the child to the biological mother and/or father to raise, or to the adoptive parent(s) (in which case, the embryo would have been a donated embryo). The surrogate mother may be called a gestational carrier.
 
(d)       Commercial Surrogacy:        
Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save or borrow in order to complete their dream of being parents. This procedure is legal in several countries including India. Commercial surrogacy is also known as ‘wombs for rent’, outsourced pregnancies’ or ‘baby farms’.
 
(e)       Altruistic Surrogacy:   
Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, accommodation, diet and other related expenses).
 
 RATIONALE:
The intended parents/Commissioning Couple may enter into a surrogacy arrangement because of:
  • INFERTILITY:Female infertility, or other medical issues, which may make the pregnancy or delivery risky.
  • RISKY PREGNANCY:The intended mother could also be fertile and healthy, and prefer the convenience of someone  else undergoing pregnancy and labor for her.
  • SAME SEX COUPLE:Surrogacy can help the same sex couples realize there dream of having there own child which is otherwise not possible for them to have a child of there own by natural way.  
  • SINGLE PARENT:For those who want to fulfill their desire of having a child sans a partner ,surrogacy is a ray of hope.    
 PARTIES INVOLVED:
Surrogacy is a multi-faceted issue, involving many individuals whose beliefs, expectations and interests are not always aligned. The primary individuals are :
  • Intended Parents
  • Surrogate
  • Fertility specialists
  • Lawyers, and
  • Surrogacy agencies.

POINTS TO REMEMBER:

  • BIOLOGICAL CONNECTION: The child must be biologically related to either of the parents in order to opt for surrogacy in India.
  • LAW OF LAND: The intended parents must precisely be sure about the surrogacy law in there country. It is essential to have a through interaction with leagl attorney in order to safeguard yourself from any exigencies. 
World over, in whichever country surrogacy is allowed, the primary condition is that at least one of the Intended parents must be biologically related. Thus, a scenario where either of the Intended parents is not biologically related is not allowed.