Dr Richa Sharma
Commercial surrogacy in India was legalized in 2002. The availability of medical infrastructure and potential surrogates, combined with international demand, has flourished the growth of the industry. Surrogate mothers receive medical, nutritional and overall health care through surrogacy agreements.For the past decade Indian citizens and international singles and couples from around the world have sought treatment for IVF, egg donation and surrogacy.
There is no legislation governing surrogacy agreements in India, however, a surrogacy Bill is before Indian parliament and it is anticipated new laws will be enacted in 2012/2013.
Reputable clinics closely follow the Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India http:// www.icmr.nic.in/art/art_clinics.htm set out by the Indian Council of Medical Research. Proposed laws for surrogacy in India are largely based on these Guidelines.
The surrogacy agreement
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.
Contracts are usually signed when clients visit India, however, in cases where a client ships sperm or embryos to India, 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.
Birth certificate
In the birth certificate, in a couple undertaking surrogacy, name of both will be there and at least one parent should have genetic component in the child as 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.
In the case of single parent only the genetic mother or father can be on the surrogacy agreement and the baby’s birth certificate.
The Municipal Council of that state issues birth certificates with preferably apostille seal which has legal validity in countries outside of India.
Citizenship of the baby born
Babies born through surrogacy agreements in India are born stateless. This means they are not given Indian citizenship by virtue of the fact they were born in India. So a clearance(no objection certificate-NOC) is mandatory for couple(Intended Parents-IP) to get from embassy before ART clinic and ART bank proceeds further, to make sure that the baby born will be able to get citizenship of their country without any hassles.
Pre-requisites for embassy
1) A signed copy of the surrogacy contract
2) Baby’s birth certificate
3) Parents’ birth certificates
4) Pregnancy medical records
5) A signed statement by the surrogate mother and her husband waiving parental rights
6) A summary of treatment provided ART Clinic
Stay of couple, to finish all paperwork/ passport/legal formalities after birth of baby can vary( approximate- from 2-3 weeks) depending upon their embassy laws
(dr. richasharma@hotmail.com)
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