WHAT RIGHTS AN INTENDED PARENT HAS VIS-À-VIS A SURROGATE MOTHER?
The Foreign Intended Parents are often worried about the various rights that a surrogate mother might exercise with respect to the child to be born out of surrogacy.However very few people are aware that the Indian law gives a host of legal rights to the Intended Parents with regards to Surrogate mother and Doctor.
Rights of the Intended Parents in respect of Surrogate Mother
Right to enter into surrogacy contract:
The IP has the legal right to ask the surrogate mother to enter into commercial surrogacy contract.Such contract should satisfy all the requirements of a valid contract as enumerated under the Indian Contract Act *** namely it should be entered between parties who are of sound mind and major, the consideration for the agreement should not be illegal, the consent obtained should be free and the object of agreement should not be illegal or against public policy.
Right to ask surrogate to relinquish legal rights over child:
Even in the absence of a formal contract the surrogate mother can be made to relinquish all rights over the child in writing.As provided by ICMR Guidelines (a copy of which is available on our page *** has as per the Indian law no right to refuse from giving the custody or child rights to the IP.Unlike many other jurisdictions in the world which allow for the surrogate mother to exercise ideally 6 weeks post birth delay /decision period.
Right to negotiate about surrogate compensation:
The Intended Parents shall personally negotiate the compensation to be paid to the surrogate mother all exclusively with her without any intervention of the ART Clinic & Agency.
Right to deny sharing of information about child:
The IP can, if they want, chose not to tell about the child, his/her progress or any decision they wish to take for child.As per Guidelines for Surrogacy in India the IP can if they want after the child attains the age of 18 years may disclose the child about the surrogate birth.The surrogate however has no right to ask the parents to disclose about her to the child or make any attempt to interfere against the wishes of the IP.
Right to take care of her health during pregnancy:
The surrogate mother is required to take care of the child in her womb and not do any act which can harm the fetus.Any attempt made by the surrogate to abort the child deliberately is a penal offence in India.The IP can thus ask surrogate mother to maintain good health during pregnancy.
Right to medical & legal counseling:
The guidelines stipulated a mandatory requirement for both the IP and the surrogate mother to undergo counseling.The surrogate should be well aware about her obligations under the contract and law and same should the IP.Also the effect on surrogate’s health due to medical treatment should be made aware to the surrogate mother by the doctor.
Right to ask for medical history of surrogate mother:
The IP have right to ask the surrogate mother about her current medical status & medical history both.The surrogate can be legally asked to give it in writing that she has contracted no disease like HIV, Hepatitis etc which can be fatal or obstruct her acting as a surrogate mother.
Right to ask surrogate mother for tests:
She can be and should be subjected to preliminary check ups /tests before short listing her.And any lack by the doctor in doing all the reasonable preliminary tests or the surrogate mother not disclosing any material fact.
Right to ask surrogate mother to help in obtaining legal rights over the child by IP:The IP can ask the surrogate mother to sign and be present in all the places where any requirement for surrogate mother is sought by judicial bodies, governmental authorities and other place.She is required to sign all papers which enable the IP to obtain full parental rights over the child.
Age of the Surrogate Mother:
A surrogate mother should not be over 45 years of age.Before accepting a woman as a possible surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy.
Number of times the women can act as a surrogate mother:
The Intended Parents have the right to ask the surrogate mother if she has acted as a surrogate mother for more than 3 times in her lifetime.
Relative acting as a surrogate mother:
A relative, a known person, as well as a person unknown to the Intended Parents may act as a surrogate mother for the couple.In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
Right to advertise about surrogate mother:
Advertisements regarding surrogacy should not be made by the ART clinic.The responsibility of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a semen bank.
Right to insist on consent of the surrogate’s husband to be obtained:
The Intended Parents can ask for the consent of the surrogate mother’s husband for confirming to her acting as a surrogate mother because the Indian Evidence Act *** recognizes the child born to a woman during the subsistence of a valid marriage and *** days after the dissolution of the marriage, if the woman has not re-married as the legitimate child of the couple.Thus on the same ground if the Surrogate Mother’s husband wants then in absence of proper legal documents being executed he can claim the child as his own.
Right to ask the Surrogate Mother to maintain confidentiality:
The right to inform the child about his/her being born out of surrogacy procedure is a decision of the Intended Parents.Until the child asks about his genetic/surrogate mother the IP are not obliged to disclose any information.And therefore it follows that the surrogate mother can be legally asked to keep the surrogacy procedure a secret for the child thus born.Further information except the name, address or the like which discloses the personal identity of an individual can only be provided.
The IP should make sure that all these aspects are covered in clauses of surrogacy contract and the doctor/agency is made aware that you may seek the enforcement of any of these rights irrespective of their style of doing business.In case of any confusion/doubt consult a legal expert on surrogacy
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