Surrogacy Agreements are valid and are enforceable in India according to Supreme Court Decision in the case of Baby Manji. India does not have a special legislation governing surrogacy arrangements. Surrogacy arrangements are governed by the Surrogacy Agreement that is entered into between the surrogate mother, her husband and the intended parents.
What is a surrogacy agreement?
“Surrogacy Agreement” is an agreement between the intended parent and the Surrogate, which expresses their necessity and fully volitional desire to opt for Assisted Reproductive Technique of Surrogacy, whereby the surrogate shall bear and gestate the embryo of the Intended Parents.
“Agreements” generally means the meeting of minds i.e. the parties to an agreement understanding each other’s intention at the point of entering into the agreement and there is a total synchronisation of thought and action.
Since there is no specific law with regard to Surrogacy or Assisted Reproductive Technique in India, ‘Surrogacy agreement’ is the only foundation, which governs the parties to Surrogacy. Therefore the Intended Parents are required to devote attention to have a perfect agreement in place, so that the surrogacy agreement is not held void or voidable in the court of law. As in every agreement, each party to a surrogacy agreement should express his/her purpose and situations, the need for surrogacy, free will of the surrogate, details about the surrogate and the terms on which the surrogate agrees to gestate the child etc. The terms chosen to be used in the agreement play an important role in determining the meaning accrued according to the context. Surrogacy agreement is a serious medico-legal subject and should be drafted by a well-experienced hand in the field. Since this agreement is a document, which validates the birth of a child, it should be made sure that the agreement is be able to meet the worst twist of situations.
GiftLife shall ensure that the surrogacy agreement that is entered between the surrogate mother and intended parents satisfies all the criterions in this document.
What should be included into the surrogacy agreement?
The following materials must be included into a surrogacy agreement to ensure that the surrogacy agreement is valid and enforceable:
- Name and details of the parties to the agreement
- Why does the party to the agreement propose surrogacy
- Details about the surrogate Mother
- What is the exact intention between the parties at time of entering into the agreement
- What is type of surrogacy? Gestational, traditional, altruistic, commercial?
- Is the question of motherhood resolved?
- What is the mentioning in the agreement about the paternity?
- Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
- Is the agreement a proper representation of your intentions?
- How is the compensation clause drafted?
- Does the agreement indicate clearly details with regard to the compensation in times of unexpected mis-happenings to the surrogate?
- Child no lien for dispute over the compensation
- Child’s custody with the Intended parents alone is legal custody
- How does the agreement strategise your paternity as there is no law recognising surrogacy in India?
- What is the jurisdiction for the disputes arising out of the agreement?
Important Legal Information
- The surrogate mother is only rendering the services of a gestational surrogate mother and has no genetic relation with the child that she may be carrying or may be born through her.
- By signing the surrogacy agreement, the surrogate mother relinquishes all rights over the child that she may conceive in favour of the intended parents, in whose interest she is carrying the child.
- After the birth of the child, the surrogate mother would have no rights over the child that she had carried to the term.
- The surrogate mother cannot claim the child at any time in the future.
- The surrogate mother has to individually understand all the terms and conditions of the surrogacy arrangement and she shall be sponsored with an independent lawyer for that purpose.
- The surrogate mother has to understand and sign all consent forms at the hospital to submit herself to the medical procedures.
- Giftlife is only an ART Bank and plays the role of a facilitator to enable the meeting of the surrogate mother and the family of the childless couple. The surrogate mother and her family must understand that Giftlife would not in any manner be responsible for the risks or the results that are associated with the medical procedures involved in the surrogacy arrangement.