Indian Surrogacy Law
Commercial surrogacy is deemed legal in India since 2002. Indian surrogacy laws are based
on the Assisted Reproductive Technology Clinic Guidelines.
Recently, some remarks and explanations were released by the Indian Council of Medical Research
in connection with the Law Commission's report on the subject of Indian surrogacy which are summarized below.
1) It is mandatory for both, the couple seeking surrogacy as well as the surrogate mother to enter into an agreement
that is legally enforceable.
Asian Surrogacy clients enter into a surrogacy contract with a surrogate mother and her husband, if applicable.
The contract sets out the responsibilities of both parties and offers legal protection for clients and surrogates
under Indian contract law. The contract also specifies payment to the surrogate mother and the stages at which she
will be paid. By signing the contract the surrogate signs away parental rights to the baby she carries.
Surrogacy agreements are prepared by__________, Advocate, __________ High Court. The cost of legal contracts is included
in Asian Surrogacy’s basic surrogacy package. Contracts are usually signed when clients visit Mumbai, however,
in cases where a client ships sperm or embryos to Mumbai, or have a change of surrogate mother; the contract can be
signed in a client’s home country provided they are witnessed by a notary public or justice of the peace.
2)One of the intended parents should be the biological parent as well
The bond of love and affection with a child primarily emanates from biological relationship. Also, the chances
of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended
parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a
child which is resorted to if biological (natural) parents and adoptive parents are different.
International clients cannot use both an egg donor and a sperm donor, or donor embryos with surrogacy, as a genetic
link between baby and at least one parent is required by the embassies of most countries to grant citizenship and a passport
to the baby. A genetic link is established through DNA testing of one parent and baby. This is a mandatory requirement
for citizens of most countries.
3) The Indian surrogacy guidelines also permit the surrogate mother to receive monetary compensation from the commissioning
couple for agreeing to act as surrogate.
4) All expenses, including insurance, for the duration of pregnancy as well as the delivery in relation to the surrogacy
should be borne by the couple commissioning surrogacy.
5) The surrogate mother has no parental rights over the baby. The birth certificate will bear the name of the persons who
commissioned the surrogacy
In the case of single parent only the genetic mother or father can be on the surrogacy agreement and the baby’s birth
certificate. For couples both parent’s names appear on the birth certificate provided one parent has a genetic link with the child.
The Mumbai Municipal Council issues birth certificates. It is wise to have your baby’s birth certificate stamped with an
apostille seal. The apostille seal is a internationally recognised seal and gives the birth certificate legal validity in
countries outside India.
6) The surrogate mother must be aged between 23 and 35 years and married. Additionally, she must have a living child that
is at least three years old. She can opt to be a surrogate mother only once in her lifetime.
7) Surrogate mothers will be subject to various medical tests for diseases
- Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted
or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child,
and must declare in writing that she has not received a blood transfusion or a blood product in the last six months.
8) All information about the Surrogate Mothers Online and surrogacy shall be kept confidential. No assisted reproductive
technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person.
9) The couple availing the services of a surrogate is bound legally to accept the custody of the child / children irrespective
of any abnormality that the child / children may have, and the refusal to do so shall constitute an offence under this Act.
10) Individuals or couples may obtain the service of a surrogate through an ART bank, which may advertise to seek surrogacy
provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of
the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.
11) A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register
at the hospital or such medical facility in her own name, clearly declare herself to be a surrogate mother, and provide the
name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate.
12) Only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART clinics shall receive or send an Indian for
13) Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the fetus during
pregnancy and the child after birth, until the time the child is handed over to the designated person(s).
Gestational Surrogacy in India is gaining ground in aiding Intended Parents world-wide. Traditional Surrogacy is legally
not permitted in India.