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deepthi puthiyaveetil (student)     23 February 2011

validity of surrogacy agreements

sir,
  I'm a law student from kerala...recently i happened to read a problem 
  relating to surrogacy.

  In it an agreement was signed between the intended
 parents and a hospital authority, for the purpose of arranging a surrogate mother.
The agreement clearly provided that the surrogate mother could enjoy 
all her personal freedoms without causing injury to the child in the 
womb. But after 4 months the surrogate mother's health condition weakened
 and she was asked by doctors to opt abotion. My questions are:
1)will the abortion in this case amount to breach of contract?
2)are surrogacy agreements legally enforceable in any court of law in 
india?
3)will the disclosure of the details of surrogate mother amount to 
violation of right to privacy under(art21) indian constitution?
4)is there any relevant case laws in this regard which could be refered?

5)is foetus a legal person under indian law?
 



Learning

 2 Replies

Amit Pateria (Advocate & Consultant (Law) Supreme Court of India New Delhi)     23 February 2011

Dear,

You may refer to the LAW COMMISSION OF INDIAs (REPORT NO. 228) on NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY

N.K.Assumi (Advocate)     23 February 2011

Law Commission Writes on Surrogacy

I have been forced to ban myself off the blog for a few days due to a very hectic work schedule and too much travel. However, here I am back a wonderful news that’s going to bring a smile on anyone’s face who’s reading this.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.


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