Indian Surrogacy Law

Basic Summary of surrogacy rules and guidelines according to India Surrogacy Law.

  1. Surrogacy can be done only by the Art clinic that is registered under the National Registry of ART Clinic & Banks, ICMR.
  2. Sex selection at any stage after fertilization, or abortion of foetus of any particular sex should not be permitted, except to avoid the risk of transmission of a genetic abnormality assessed through genetic testing of biological parents or through pre- implantation genetic diagnosis (PGD).
  3. No more than three eggs or embryos should be placed in a woman during any one treatment cycle, regardless of the procedure used, excepting under exceptional circumstances {such as elderly women (above 37 years), poor implantation (more than three previous failures), advanced endometriosis, or poor embryo quality} which should be recorded.
  4. The birth certificate of the child shall bear the names of the Intended parents even if egg /sperm donor was used.
  5. Single mother or single father can commission surrogacy provided they can provide their reproductive gametes and are resident Indian Nationals. They will have full rights on the child born through surrogacy agreement. ( Assisted Reproductive Technology Act 2008 under Sec 32)
  6. In case of single parents surrogacy issuing of birth certificate is slightly complicated and time taking, due to the absence of any definite law in India. Single parents should submit an affidavit that the child was conceived using egg / sperm donor, to the local municipal councillor who will approach the registrar of birth. The registrar will then issue the appropriate birth certificate in the name of the Single Parent.
  7. The only "couples" eligible for ART shall be those "having a sexual relationship that is legal in India." Same Sex Couples are not eligible.
  8. A third party donor of sperm or oocytes must be informed that the offspring will not know his/her identity.
  9. Surrogate mother cannot act as egg donor.
  10. An oocyte donor cannot act as a surrogate mother for the couple to whom the ooctye is being donated.
  11. A third-party egg / sperm donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa.
  12. Neither the clinic nor the Intended parents should know the identity of the semen/oocyte donor. Intended parents will be provided the following information regarding the semen donor: height, weight, skin colour, educational qualification, profession, family background, freedom from any known diseases or carrier status (such as hepatitis B or AIDS), ethnic origin, and the DNA fingerprint (if possible), before accepting the donor semen/ egg donor.
  13. The Intended parent(s) will have to enter into an agreement with the surrogate mother.
  14. The Intended parent (s)will bear all expenditure incurred on medical tests and treatment, food, health insurance, compensation and other requirements of the surrogate mother, from the date of agreement, during the period of pregnancy and after delivery as per medical advice and till the child is ready to be delivered as per medical advice, to the biological parents.
  15. Intended parent(s) will also provide monitory compensation to the surrogate for carrying out surrogacy.

Surrogate’s rights:

  1. All the expenses of the surrogate mother during the period of pregnancy and post- natal care relating to pregnancy should be borne by the couple seeking surrogacy.
  2. The surrogate mother would also be entitled to a monetary compensation from the couple for agreeing to act as a surrogate.
  3. The Surrogate needs to be counselled about her consent in giving up all parental rights over the child.
  4. The surrogate should be explained about any complications or side effects that may occur during the treatment procedure and pregnancy.
  5. The surrogate should be explained about any complications or side effects that may occur during the treatment procedure and pregnancy. The exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother

Child’s rights:

  1. A child born through ART has a right to seek information (including a copy of the DNA fingerprint, if available) about his genetic parent/surrogate mother on reaching 18 years, excepting information on the name and address – that is, the individual’s personal identity – of the gamete donor or the surrogate mother.
  2. The couple is not obliged to provide the information to which the child has a right, on their own to the child when he/ she reaches the age of 18, but no attempt must be made by the couple to hide this information from the child should an occasion arise when this issue becomes important for the child.
  3. The Indian Law makes it mandatory for the intended parents to take the responsibility of the child thus born and parents have to accept the child irrespective of any abnormality and a refusal to do so would constitute an offence.