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The Surrogacy Checklist
Before you dive into the legal intricacies of surrogacy in India, it’s essential to go through a comprehensive checklist to ensure you’re well-prepared for the journey ahead.
1. Choose the Right Surrogacy Arrangement
There are two primary types of surrogacy: traditional surrogacy, where the surrogate uses her own eggs, and gestational surrogacy, where the surrogate carries an embryo created from the intended parents’ or donors’ genetic material. Determine which type of surrogacy is suitable for your family.
2. Select a Reputable Surrogacy Agency
Working with a reputable surrogacy agency can streamline the process and provide support and guidance at every stage. Ensure the agency you choose complies with Indian surrogacy laws and ethical guidelines.
3. Consult with Medical Professionals
A critical step in the checklist is consulting with fertility specialists and medical professionals to determine your eligibility for surrogacy and to create a viable embryo for transfer to the surrogate.
4. Understand the Legal Landscape
It’s crucial to familiarize yourself with the surrogacy laws in India, which underwent significant changes in recent years. Make sure you’re aware of the legal requirements and restrictions. On January 25th, 2022, the new Surrogacy (Regulation) Act, 2021, went into force. The amended act exclusively permits charitable surrogacy, preventing those with financial means from abusing and taking advantage of the surrogacy option.
The Surrogacy (Regulation) Amendment Rules of 2023 introduce noteworthy alterations to the qualifications expected of Andrologists participating in surrogacy procedures. Pursuant to the amendment, an Andrologist is now required to possess an MCh/DNB in urology, an MS in General Surgery, or an FNB/MCh/DM in reproductive medicine. Furthermore, they are mandated to have accrued a minimum of two years of experience and to have gained practical expertise in various surgical sperm retrieval procedures, including PESA, TESA, TESE, MESA, and MICROTESE. These updated qualification standards are designed to uphold the proficiency and competence of Andrologists within the realm of reproductive medicine.
These amendments significantly contribute to the overarching framework outlined in the Surrogacy (Regulation) Act of 2021. This Act serves the paramount purpose of regulating surrogacy arrangements, with a particular focus on safeguarding the rights and interests of surrogate mothers, intended parents, and offspring born through surrogacy. The rules established therein provide lucidity and a set of guidelines for the effective implementation of the Act, thereby fostering ethical practices and ensuring the well-being of all stakeholders engaged in surrogacy agreements.
It is of utmost importance for individuals and couples contemplating surrogacy, as well as healthcare professionals partaking in surrogacy procedures, to remain apprised of the updated directives and prerequisites delineated in the Surrogacy (Regulation) Amendment Rules of 2023. Strict adherence to these regulations is indispensable for aligning with the legal framework and endorsing responsible and ethical surrogacy practices throughout India.
5. Financial Planning
Surrogacy can be a significant financial investment. Create a budget that covers medical expenses, agency fees, surrogate compensation, legal fees, and other associated costs.
The Step-by-Step Legal Process in Indian Courts
Once you’ve completed the checklist and are ready to proceed with surrogacy in India, it’s time to navigate the legal aspects. Here’s a step-by-step breakdown of the legal process:
Step 1: Drafting the Surrogacy Agreement
A legally binding surrogacy agreement is the foundation of the entire process. This agreement outlines the rights and responsibilities of all parties involved, including the intended parents and the surrogate mother. Seek legal counsel to draft a comprehensive agreement that complies with Indian surrogacy laws.
Step 2: Court Petition
After drafting the surrogacy agreement, you must file a petition in the appropriate court to seek approval for the surrogacy arrangement. The court will review the agreement and ensure that it adheres to legal standards. The Application in the court should be as per the section 4(iii)(a)(ii) seeking an order for Parentage and Custody of the Child to be born through surrogacy.
Documents Required to file the case in the courts of India:
1. Aadhar Card of Intending Mother
2. Aadhar Card of Surrogate Mother
3. Copy of Mrg. Certificate of Intending Mother
4. Copy of Medical Indication Certificate
5. Copy of Recommendation from Infertility Clinic (Pref. Govt)
6. Copy of Medical and Fitness Certificate of Surrogate Mother
7. Consent Letter from Surrogate Mother
8. Proof of Insurance Cover of Surrogate Mother.
Step 3: Court Hearing
Once the court receives your petition, a hearing will be scheduled to examine the details of the surrogacy arrangement. During the hearing, all parties involved may be required to testify. If the court is satisfied, it will issue an order approving the surrogacy. Expect a cycle time of at least 3 – 6 months for end to end court process depending on the documentation you shall carry and if no objections to any requirements from the court are raised, at times it can happen sooner too.
Step 4: Obtaining the Birth Certificate
After the court’s approval, you can proceed with the surrogacy process. Following the birth of the child, you must apply for a birth certificate in the name of the intended parents.
Step 5: Passport and Exit Visa
Once the birth certificate is issued, you can apply for a passport and exit visa for the child, allowing you to leave India with your newborn.
Navigating the legal process for surrogacy in Indian courts requires careful planning, legal expertise, and adherence to the regulations. Consulting with an experienced lawyer who specializes in surrogacy and matrimonial laws is crucial to ensure a successful surrogacy journey.
Remember that surrogacy laws can vary from state to state in India, so it’s essential to seek legal advice tailored to your specific circumstances. By following the checklist and the step-by-step legal process, you can embark on your surrogacy journey with confidence, knowing that you are taking the right legal steps to bring your bundle of joy into the world.
If you have any questions or need legal guidance on surrogacy in India, don’t hesitate to contact us at +91 9845944896 or mail@lawyersonia.com. We’re here to help you navigate the intricate legal landscape of surrogacy and guide you towards achieving your dream of parenthood.
“Sonia and Partners” is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the Best Lawyers in Bangalore appearing for clients at both District Courts and High Court practicing in the area of Family Law and Criminal defence serving Citizens of India, Overseas Indians, NRIs and Global International Clients.
