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Surrogacy: An Legal Issue

Nowadays, India is facing never ending legal issues at large scale, of which surrogacy is one. Surrogacy is not only a legal but an ethical issue as well. Surrogacy is a contract where a pregnancy is carried out by a woman for the couple who are unable to conceive their baby on their own.

The woman for doing surrogacy is hired the intended couple through an agency our other sources. These women are either poor or compelled for doing this work. This system has become income resource for them. India is a place where commercial surrogacy is legal. Couples from all over the world approach to India for Surrogacy.

Surrogacy can be classified into two main types: gestational and traditional. In gestational surrogacy, pregnancy occurs due to the transfer of an embryo formed by in vitro fertilization such that the resulting child is genetically unrelated to the surrogate. Traditional surrogacy includes impregnation of the surrogate mother naturally or artificially, and the resulting child is genetically related to the surrogate. Surrogacy agreement may or may not include compensation.

The arrangement could be termed as commercial surrogacy when the surrogate woman is given compensation higher than the medical reimbursement and other rational expenses; otherwise, it is referred to as altruistic or non-commercial surrogacy.

The parental rights are not guaranteed after surrogate pregnancy. The law continues to change as technology of reproduction and the definition of parents changes every now and then. There is no federal law for surrogacy and state laws can vary. Laws of surrogacy vary from nation to nation. Commercial surrogacy is legal in India, Ukraine, and California whereas it is illegal in England, many states of United States, moreover Australia, only recognizes altruistic surrogacy. On the contrary, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements.

Although this arrangement seems to be beneficial for all the concerned parties, there are certain delicate issues which affect the rights of the surrogate mother. Hence, it is necessary to protect the rights of the surrogate mother and intended parents through legal framework.

Surrogacy Contracts

Prior to the embryo transfer, every surrogate and intended parent must work with their own attorney to draft and negotiate a surrogacy contract.

Every surrogacy contract outlines two major legal issues:
  • Finances:
    The parties' attorneys will negotiate the surrogate's base compensation including additional payments for items like maternity clothes. The contract should also determine added compensation if in case of any complications or other possible circumstances, like carrying multiples or doing bed rest.
  • Social Requirements:
    The contract also will outline the surrogate's basic responsibilities throughout the pregnancy — abstaining from tobacco, alcohol and other drugs, for instance. Most contracts also include certain social agreements between the intended parents and therefore the surrogate, like who are going to be present at key prenatal appointments and at birth.

    There are many variables which could impact the course of a pregnancy and a surrogacy arrangement. It's vital to figure it out with an experienced surrogacy attorney to draft a comprehensive contract that covers every possible outcome.


International Surrogacy Arrangement

Traditional surrogacy includes the union of the egg of a surrogate mother and, usually, the sperm of the intended father. The commissioning father would be the child's legal father, and therefore the surrogate mother would be the child's legal mother, within the home country of both the parents.

However, at the present, conferring parentage on couples who use artificial fertilization techniques is problematic. Generally, the sperm donor is considered as the father of the child, so legislation had to be enacted such that the husband of the woman who is inseminated by artificial insemination-donor would be the legal father of the child. This legislation doesn't encourage surrogacy arrangements.

Advances in medical technology like gestational surrogacy enable an embryo to be created from a donor egg and sperm then implanted into surrogate mother. During this case, the “mother” has got to be legally defined. Legal rules may differ within the home countries of the surrogate and therefore the commissioning parents.

There could also be a major conflict of laws which can affect matters like nationality and immigration. In countries that allow commercial surrogacy arrangements, rules may permit commissioning parents to possess parental rights over the child, and not the surrogate mother. This might not be recognized by other countries, which may have their own rules.

Adoption And Other Post-Birth Process

In some cases, additional legal steps are to be taken after a baby born via surrogate. This is true in any surrogacy arrangement where one or both of the intended parents isn't genetically associated with the baby. A stepparent adoption is required when one parent's genetic material was combined with donor eggs or sperm to make the embryo. A husband may adopt his wife's genetic child, or a wife may adopt her husband's genetic child. Depending on state laws, unmarried same-sex couples may need to complete a second-parent adoption instead of stepparent adoption.

If the intended parents completed an embryo adoption and neither of them is biologically associated with the child, a full adoption is required by both parties. Whenever an adoption is required in surrogacy, the intended parents must abide with their state's adoption laws.

In commercial surrogacy arrangement the woman are hired through agencies. These women are either poor or are compelled to do this job. So, to protect their rights certain remedies should be taken and effective legal framework should be carried out. All the expenses including insurance of surrogate doctor's bill and other reasonable expenses associated with pregnancy and childbirth should be borne by intended parents.

A surrogacy contract should include life insurance cover for surrogate mother. It is felt that to save poor surrogate mothers from exploitation, banks need to directly deal with surrogate mother, and minimal remuneration to be paid to the surrogate mother should be fixed by law. The surrogacy arrangement should also provide for financial support in favor of the surrogate child if in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and subsequent willingness of none or either of the parents to take delivery of the child so as to avoid injustice to the child. A mother shouldn't have any parental rights over the child, and therefore the birth certificate of the baby should bear the names of intended parents as parents so as to avoid any legal complications.


  1. nikita.rangarajan28, legalservicesindia accessed on 24th August, 2020.
  2. nikita.rangarajan28, legalservicesindia accessed on 24th August, 2020.

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