ART _ Presentation-Feb2015 - Copy

Education, Awareness and Legal
Challenges related to Surrogacy
R & M Partners Contact No. +91 9015173467, +91 88007 22330
Legal Aspects of Surrogacy

The Parents construct the Child biologically,
while the Child constructs the Parents socially
WHAT IS SURROGACY
Surrogacy is an arrangement in which a woman agrees to carry
a pregnancy that is genetically unrelated to her and her
husband, with the intention to carry it to term and hand over the
child to the genetic parents for whom she is acting as a
surrogate.

SURROGACY - BROADER CLASSIFICATION
COMMERCIAL SURROGACY
It’s 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.

ALTRUISTIC SURROGACY
It 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).
SURROGACY - BROADER CLASSIFICATION

Intended Parents
Surrogate Mother
Commissioning Party
Lawyer
ART Banks &
ART Clinics
SURROGACY ARRANGEMENT - PARTIES INVOLVED

1. Surrogacy Agreement
2. Agreement between
Intended Parent and ART
Bank
3. Consent Forms and
documents.
MANDATORY AGREEMENTS

MANDATORY PRELIMINARY INFORMATION AND
COUNSELLING TO BE GIVEN TO PATIENTS

PRELIMINARY INFORMATION AND COUNSELLING
The basis, limitations and possible outcome of the treatment
proposed, variations in its effectiveness over time, including the
success rates with the recommended treatments obtained in the
clinic as well as around the world.
The possible side-effects (e.g. of the drug used) and the risks of
treatment to the women and the resulting child, including (where
relevant) the risks associated with multiple pregnancy.
Possible disruption of the patient’s domestic life which the
treatment may cause.

The advantages and disadvantages of continuing treatment
after a certain number of attempts.
The cost (with suitable break-up) to the patient of the
treatment proposed and of an alternative treatment, if any
(there must be no other “hidden costs”).
Pamphlets (one-page on each technique in all local languages
and English) which give clear, precise and honest information
about the procedure recommended to be used will help the
couple make an informed choice.

•Couple shall have the right to have the fullest possible
information from the semen bank on the donor such as
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.
•Subject matter expert law firm is engaged by the
couple or is referred / provided by the ART Clinic in
respect of oocyte donor or surrogate mother.

RIGHTS OF COUPLE IN SURROGACY

A child born through surrogacy must be adopted by the genetic
(biological) parents unless they can establish through genetic
(DNA) fingerprinting (of which the records will be maintained in the
clinic) that the child is theirs.
Documentary evidence of the financial arrangement for surrogacy
must be available. The ART centre should not be involved in this
monetary aspect. Appropriate Agreement should be present
documenting the financial aspect of surrogacy.
It is the responsibility of ART Clinic to ensure that a surrogate
mother should not be over 45 years of age and the woman
satisfies all the testable criteria to go through a successful full-
term pregnancy.
TECHNICAL & CONTRACTUAL RIGHTS

Ethic Committee should exist which can enforce the rights of the
couple in case of any concerned dispute.
All consent forms & necessary documents are duly filled and
signed by the concerned parties i.e. Intended parents, Surrogate
Mother, Commissioning Party, Sperm Donor and Oocyte Donor
(as the case may be).
The birth certificate shall be in the name of the genetic parents.
TECHNICAL & CONTRACTUAL RIGHTS

has not had a drug intravenously administered into her through a
shared syringe,
has not undergone blood transfusion;
she and her husband (to the best of her/his knowledge) has had
no extramarital relationship in the last six months;
will not use drugs intravenously, and not undergo blood
transfusion excepting of blood obtained through a certified blood
bank; and
RIGHTS OF COUPLE AGAINST SURROGATE
MOTHER (WRITTEN ASSURANCE PROVIDED BY
THE SURROGATE MOTHER)

has not acted as a surrogate more than thrice in her lifetime.
will not use drugs intravenously, and not undergo blood
transfusion excepting of blood obtained through a certified
blood bank
will avoid sexual intercourse during the pregnancy
has undergone the HIV test and shown to be sero negative
for this virus just before embryo transfer.
will not undertake disclose the identity of the couple.
RIGHTS OF COUPLE AGAINST SURROGATE
MOTHER (WRITTEN ASSURANCE PROVIDED BY
THE SURROGATE MOTHER) continue.....

The child shall have a legal right to parental support, inheritance,
and all other privileges of a child born to a couple through sexual
intercourse.
Children born through the use of donor gametes and their
“adopted” parents shall have a right to available medical or
genetic information about the genetic parents that may be
relevant to the child’s health.
In the case of a divorce during the gestation period, the law of the
land as pertaining to a normal conception would apply.
RIGHTS OF A CHILD BORN THROUGH VARIOUS
ART TECHNOLOGIES

AN INTERNATIONAL OVERVIEW OF SURROGCY

STATUS OF COUNTRIES IN RESPECT OF SURROGACY
Countries where both commercial and
altruistic surrogacy is allowed by law
Countries where only altruistic surrogacy
is allowed by law
Countries where all kinds of surrogacy
are banned by law
Russian Federation Australia Germany
Ukraine Canada (except Quebec) France
Belarus United Kingdom Belgium
Georgia Netherlands Spain
Armenia Denmark Italy
Cyprus Hungary Switzerland
India Israel Austria
South Africa United States (New York Norway
UNITED STATES New Jersey Sweden
California New Mexico Iceland
Florida Nebraska Estonia
Illinois Virginia Moldova
Texas (court approval is required before
going for surrogacy) Oregon Turkey
Massachusetts Washington) Saudi Arabia
Vermont Pakistan
Arkansas China
Japan
Canada (Quebec)
United States (Arizona
Michigan
Indiana
North Dakota)

FOREIGN NATIONALS – RIGHTS & RESPONSIBILITIES
Visa type, Conditions and Regulations
Foreign nationals intending to visit India for the purpose of
Commissioning Surrogacy are required to hold Medical Visa.
Medical Visa shall be issued subject to the following conditions:
a. The foreign man and woman are duly married and the marriage
should have sustained at least for two years.
b. A letter from the Embassy of the foreign country in India or the
Foreign Ministry of the country should be enclosed with the visa
application stating clearly that (a) the country recognizes
surrogacy and (b) the child/children to be born to the
commissioning couple through the Indian surrogate mother will be
permitted entry into their country as a biological child/children of
the couple commissioning surrogacy.

R & M Partners
The couple will furnish an undertaking that they would take care
of the child/children born through surrogacy.
The treatment should be done only at one of the registered
Assisted Reproductive Technology (ART) clinics recognized by
ICMR.
The couple should produce a duly notarized agreement between
the applicant couple and the prospective Indian surrogate mother.
Contact No. +91 9015173467, +9188007 22330

Foreign couple should obtain a certificate from the ART clinic
concerned regarding the fact the child/children have been duly
taken custody of by the foreigner and that the liabilities towards
the Indian surrogate mother have been fully discharged as per the
agreement.
Birth certificate (s) of the surrogate child/children should be
obtained by the Foreign parents.
The foreign couple would be required to take exit permission from
the FRRO/FRO before leaving India for their return journey.

OCI/PIO Cardholders coming to India for commissioning
surrogacy will not require a separate Medical Visa. However, on
arrival to India and before commissioning surrogacy, they will
have to obtain a special permission from the FRRO/FRO
concerned.
Such OCI/PIO’s couple should produce a duly notarized
agreement between the applicant couple and the prospective
Indian surrogate mother.

Documents to be submitted by the foreign nationals to FRROs/FROs
for exit permission in case of Surrogacy cases:‐
1. Applicant‘s photo
2. Infant’s passport or Emergency travel document issued by the concerned
Mission.
3. Passport & visa of foreign parents:
4. Residence proof of India
5. Duly Notarised Surrogacy agreement
6. No objection Certificate (NOC) from surrogate mother
7. Embassy letter indicating the issuance of new passport

Letter from the Embassy of the foreign country in India or the
Foreign Ministry of the country stating that (a) the country
recognizes surrogacy and (b) the child / children to be born to the
commissioning couple through the Indian surrogate mother will
be permitted entry into their country as a biological child / children
of the couple commissioning surrogacy.
Discharge letter from the hospital where child is born.
Copy of no dues certificate from ART Clinic where child is born.

Certificate from the ART Clinic concerned confirming that the
child/children have been duly taken custody by the foreigners
and that liabilities towards the Indian surrogate mother have
been fully discharged as per the agreement.
Copy of embryology letter from ART Clinic.
Undertaking from the commissioning parents that they would
take care of the child /children born through surrogacy.
Birth Certificate(s) of the surrogate child /children.

Legally, it is far simpler to become legal parents in India. Unlike
Countries such as UK, Some parts of USA, Canada and Australia
which considers surrogates as legal mother.
India recognizes the Intended Parents as the legal parents. In
some countries where surrogacy agreements are not legally
binding there have been case of surrogate mothers deciding not
to relinquish babies whereas in India all surrogates are required
to sign contracts waiving any rights over the child.
Laws in India provide for surrogate mothers to receive medical
care, nutritional care, insurance, local guardian and health care
through surrogacy agreements.
WHY TO CHOOSE INDIA

Indian clinics are more competitive, not just in the pricing, but in
the hiring and retention of Indian females as surrogates.
India has the right infrastructure, best in class health care
facilities, services and favourable laws which makes it a
complete package.
The birth certificate of a child born through the use of assisted
reproductive technology shall contain the names of the parents,
who sought such use.
WHY TO CHOOSE INDIA

If a foreigner or foreign couple seeks sperms or egg donation, or
surrogacy in India, and a child is born as a consequence, the
child, even though born in India, shall not be an Indian citizen.
A child born to Intended Parents through the use of assisted
reproductive technology shall be presumed to be the legitimate
child of the couple, having been born in wedlock and with the
consent of both spouses and shall have identical legal rights as a
legitimate child born through sexual intercourse.
WHY TO CHOOSE INDIA

R & M PARTNERS
SERVICES:
Pre-Surrogacy Legal Counselling
Legal Audit & Risk Assessment
Legal Review of Surrogacy Agreement
Representing Intending Parents in India
Selection of Donor and/or Surrogate
Passport and exit
Representations in court
Supervision of surrogate and clinics
Partners:
Raman Sharma, C S & L.LB
Experience 5 years
Contact No. +91 90151 73467
Manish Nama, C S
Experience 5 years
Contact No. +91 88007 22330

ART _ Presentation-Feb2015 - Copy

ART _ Presentation-Feb2015 - Copy

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