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Gestational surrogacy is a process where one person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to a baby for another person or Intended couple, with the intention of handing over the child after the birth to the Intended couple/ person.

The surrogate transfers custody and guardianship to the intended parent(s) following the birth of the child. Surrogacy entails numerous legal and medical procedures that must be followed. Hence, it is crucial to understand the process and seek professional advice before embarking on Surrogacy.

  • Surrogacy ACT 2021
  • Making Informed Decisions
  • Legal and Ethical Considerations

Surrogacy ACT 2021

In India Surrogacy process  is governed by a set of specific regulations and laws . These regulations aim to ensure that surrogacy is conducted ethically and safely. Let’s delve deeper into these regulations:

Altruistic Surrogacy : As per the latest Surrogacy act, only Altruistic (non-commercial) Surrogacy is allowed in India. Altruistic surrogacy does not involve any financial compensation for the surrogate mother except for covering medical expenses and insurance during the pregnancy period.

Surrogacy procedure: As per the SURROGACY (REGULATION) ACT, 2021, “surrogacy procedures” means all gynaecological, obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryos in surrogacy.

Who is a Surrogate Mother?

As per the SURROGACY (REGULATION) ACT, 2021, “surrogate mother” is a woman who consents to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of an embryo in her womb and meets the criteria listed below is referred to as a “surrogate mother:

Who is eligible to become a Surrogate mother in India?

The surrogate mother shall have an eligibility certificate issued by the appropriate authority on qualifying under the following conditions:

  • Close Relative: The surrogate mother must be a close relative of the intending couple. This typically includes sisters or sisters-in-law.
  • Medical Fitness: She should be able to provide a medical fitness certificate indicating her physical and psychological well-being to undertake surrogacy.
  • Marital Status: Only a married woman or a woman who was once married , and have a child of her own, demonstrating her ability to bear and raise children.
  • Age Range:The age of the surrogate mother should fall within the range of 25 to 35 years old.
  • Limited Surrogacy: A woman can act as a surrogate mother only once in her lifetime, as per the eligibility criteria of the Surrogacy Act.
  • Gamete restrictions: A surrogate mother shall not provide her own gametes

Who can apply for Surrogacy in India ?

The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.

Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.

Legally married Indian man above the age of 21 years and Indian woman above the age of 18 years with a medical indication necessitating gestational surrogacy only can apply for a surrogate mother for their childbirth in India. The married couple shall obtain a certificate of recommendation from the respective authority for this purpose.

Prerequisites of Surrogacy in India

Surrogacy in India is valid in cases:

  • When an intending couple has a medical indication necessitating gestational surrogacy
  • When it is only for altruistic (selfless) surrogacy purposes
  • When it is not for commercial purposes
  • When the in-charge of the surrogacy clinic or the one at the same position in the surrogacy clinic is satisfied with the surrogacy contract documentation
  • When the intending couple is in possession of a certificate of essentiality issued by the appropriate authority

Making Informed Decisions

Important considerations for a successful surrogacy arrangement

We can expect a positive surrogacy arrangement when the intended parent(s) and the surrogate mother have good physical health and positive mindset and have transparent communication. They should have a clear mutual understanding of the surrogacy contract and medical processes along with clear boundaries and realistic expectations.

Important factors that can contribute to a positive surrogacy arrangement are:

  • Good physical health and positive mindset of all the parties involved
  • Transparent communication between all parties
  • Clear mutual understanding of the surrogacy contract and medical processes for all the parties
  • Clear boundaries and realistic expectations between the parties

Legal and Ethical Considerations

 Rights of a Surrogate Mother in India

  • A surrogate must be explained in detail all known side effects and aftereffects of such procedures that concern her.
  • Shall be given written procedure information in the language she understands for the surrogate mother to give her consent to undergo such procedures
  • The surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of human embryo in her womb
  • The number of oocytes or human embryos to be implanted in the uterus of the surrogate mother for the purpose of surrogacy shall be no more than two embryos.
  • No person, organization, surrogacy clinic, laboratory or clinical establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy except in any conditions prescribed beforehand.
  • The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure under any medical or social reasons.
  • A child born out of surrogacy procedure will be considered the intended parents’ biological child, and the intended mother will be entitled to all the rights and privileges accorded to a natural child under any current laws.

 Parentage and Abortion Rules:

An abortion of the surrogate child requires the written consent of the surrogate mother and authorization from the appropriate authority, following the Medical Termination of Pregnancy Act, 1971.

What does the Indian Surrogacy Law prohibit?

  • It bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
  • unmarried women, single men, live-in partners, and same-sex couples from availing surrogacy services.
  • There is no third-party involvement in Altruistic surrogacy
  • A government notification in March 2023 amended the law, banning the use of donor gametes with one exception- it allows a woman suffering from the Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome—a rare congenital disorder that affects the female reproductive system — to undergo surrogacy using a donor egg.

Procedure

The Surrogacy Process

A typical surrogacy process includes an indication of surrogacy requirement as per the ART law, along with the consent of the surrogate mother as well as the commissioning intended parent. The procedure requires the identification of a suitable surrogate and conducting her medical investigations. Once the reports are good to go, there is a formal meeting between the surrogate mother and the intended parents followed by the legal documentation. Finally, it is pregnancy implantation, followed by a successful gestation and child delivery.

The surrogacy process includes the following steps:

1Indication of surrogacy requirement as per the ART law
2Surrogate identity verification
3Medical investigation of the surrogate
4Consent of the surrogate mother as well as the commissioning intended parent
5A formal meeting between the surrogate mother and the intended parents
6Legal documentation
7Intended couple undergoes IVF cycle for creation of embryos
8Intending couples” must use their own gametes for surrogacy
9Surrogate preparation for embryo transfer
10Embryo Transfer to surrogate
11Beta HSG tests to confirm pregnancy
12Pregnancy & gestational care of surrogate
13Child delivery
14Parenthood
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