Ravi (None) 15 March 2014

Adopting baby born thru surrogate (no biological link)

Hi,

I heartfully thank in advance for your reply to my query

We are Indian couple currently in overseas and we are going to get our

baby delivered thru surrogate in India. Baby delivered will not be our biological

child as we used donor embryos in the whole procesess.

In this process hospital accepted to help us to get birth certificate for baby with

our name as parents.

We are in process of permanent migration to other country, as part of the process if we include

our child in the visa application for permanent migration, there is a 10% chance of asking

if the child is our biological child, though we present birth certificate with our name as parents.

In very rare scenario we may be asked for DNA test.

So to avoid those legal issues, we are thinking of going for legal adoption of the baby and have the

valid legal adoption papers and apply for the visa under apropriate category.

Please advice

1. Can we adopt a child born thru surrogacy with adopted/donor embryo (baby has no biological link either with surrogate or us)

2. What is the process to adopt this way?

3. After adoption we want to take baby abroad, is there any restrictions on this?

4. During the baby delivery we will be getting birth certificate with our name as parents, will this be an issue while we go for adoption process/paper work

5. Any documents/help from hospital is required?

6. Generally how long it will take to complete this whole process so that we can fly out of India

7. I have an understanding that there will be an visit to adopted parents house by CARA is that true? we want to be discreet on this process.

I really appreciate your insights/help on this.

Thanks

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1 Replies

T. Kalaiselvan, Advocate (Advocate) 15 March 2014

In India the surrogate is not considered as the legal mother. As per ICMR Guidelines 2005, a surrogate mother cannot be genetically related to the child . She is legally and psychologically counselled that she will not be having any rights over the child. Her rights and obligations towards the intended parents as well the child are formulated in the gestational surrogacy agreement. Moreover, a child born through surrogacy shall be presumed to be the legitimate child of the intended parents/s and shall have all the legal rights to parental support, inheritance and all other privileges which a child born naturally to the intended parents/s would have had.

As per the Indian Council of Medical Research (ICMR Guidelines) the surrogate mother should not be biologically connected to the child .The Indian Law recognises the Intended mother only as the legal mother in surrogacy arrangements. Also it is very much clear that the intended parents only would be the legal parents of the child with all the attendance rights, parental responsibility etc. Also the surrogate mother shall not be the legal mother and the birth certificate shall be in the name of the genetic parents

Indian law doesn’t put any bar on opting for donor sperm or eggs. In cases where the child is biologically related to the intended father the intended father only would be the legal father provided the child so born should not be biologically connected to the surrogate mother. In such a scenario the donor egg should be used and the donor shall be bound to relinquish all the parental rights over the child so born, thus making the intended father only as the legal father of the child as per Indian law.