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What is the legal position in India with regard to surrogacy?

Surrogacy is a form in which a Surrogate Mother is compensated for carrying the child in her womb on a certain conditions that she shall carry the child on the term mutually agreed between the parties and then hand over the custody of the child to the Intended Parents. Guidelines issued by the Indian Council of Medical Research (ICMR) lays down that the surrogate and the Intended Parents are in best position to decide all commercial aspect with regard to surrogacy arrangement. As there is no statutory law governing surrogacy in India, guidelines given by the ICMR and judgments passed by the Hon'ble Supreme Court and High Court on matters of surrogacy will act as a law to fill the vacum. However, a ___________bill has been introduced in the parliament to regulate surrogacy and related matters. Presently surrogacy arrangements have been given a legal status, therefore transactions and arrangements made for surrogacy process are valid in law.

What is a Surrogacy agreement?

A surrogacy agreement is an agreement entered between the Intended Parents and the surrogates, wherein the Surrogate Mother promises to the Intended Parents that she will carry their child for which she will get equal/adequate compensation for the expenses she bears. In this type of agreement the parties define their role, duties and obligation before, during and after the process. In other words, the agreement states all the rights, duties and obligations/liability of the Surrogate Mother and Intending Couple towards each other which they sign after understanding the contents of the agreement. The surrogacy agreement is important to understand every party's role throughout the process of surrogacy. It is pertinent to note that no process of surrogacy will be as smooth as in the presence of this agreement.

How do we select a Surrogate Mother?

a) The Surrogate Mother should have a quality of understanding the whole process of surrogacy practically. She must know that the purpose behind this process of surrogacy is to provide infertile couple or individual, a chance of becoming parents.
b) The Surrogate Mother should be aware of the fact that even though surrogacy looks like a typical surrogacy it is much more complicated and involves various ethical, emotional and legal issues.
c) The Surrogate Mother also needs to understand that there will be no genetic link between her and the child which she will carry during the term of surrogacy.
d) The Surrogate must visibly understand that surrogacy is very time consuming process which may exceed the period promised by the medical practitioners or the agency. The surrogate should be independent and should have an alternative souse of income apart from the compensation offered to her by the Intending parents.
e) The surrogate should realise that apart from the labour pains she has to go through a lot of discomfort during the period of pregnancy which may occur because of the medication, treatments and injections.
f) Informed consent of the partner/spouse of the Surrogate Mother is most important for a successful surrogacy.
g) The decision to become a Surrogate Mother should be independent and free from coercion, force or compulsion.
h) The surrogate mother must be aware of the fact that there are high chances that she may have to conceiving more than one baby during the process of surrogacy, and in such an event, selective reduction would be a normal process. Multiples are very common in the process of surrogacy; and the Surrogate should accept these terms.
i) It is preferable that the surrogate has had prior proven pregnancies. While selecting a surrogate this would only enhance her chances to become a Surrogate Mother, as she has proved her capacity as a child bearer already.
j) The Surrogate is free from any restrictions to claim compensation from the Intending Parents for the services she will be offering; provided all such remuneration has been accepted by the Intending Parents or individual.
k) The Surrogate Mother should also understand that the child she will be carrying is going to part away from her and she should be capable enough to face all hardship she might go through during that process. This process the Surrogate will require support of her family, expert counsellors and psychologists; moreover hardships of this process can also be reduced if the Surrogate Mother has already got children to whom she can return back, after handing over the child to the Intended Parents.
l) There exists a possibility that the surrogate mother might never be able to conceive again after undergoing surrogacy. It is most advisable that the surrogate mother has already given birth to children, so that she would not feel exploited in case the surrogacy leaves behind a situation where she can never bear a child again.
m) The Surrogate Mother should be strong enough to handle all the pain and suffering which she might acquire due to surrogacy.

How will we protect prospective surrogate mother's privacy?

Little Angels is aware about the fact that the process of surrogacy has various delicate and serious ethical and social issues attached to it; hence, only officials at Little Angels shall have access to the information details provided by you for the process of surrogacy. Before your first appointment with the Intending Parents, we will discuss and negotiate your demands for compensation with them, and only after their acceptance they will be allowed to have a meeting with you. All the information relating to you will never be disclosed without your prior permission. To secure your identity we obtain a written consent letter from the Intending Parents wherein they promise that they shall do everything to protect your identity.

Is there any specific reason for preferring only married women with children as a Surrogate Mother?

Yes, it is true that the married women with children are preferred over unmarried women to become a surrogate. The reason for this classification lies in the pains and discomfort involved in the process of surrogacy; it is a fact that a woman has to go through a lot of emotional and physical stress while parting away from the child which she carries for several months. Even though she understands that she has no genetic link to the child she has to face certain amount of distress, but when the Surrogate Mother is married and has got children, to whom she can return to she is likely to have a way to come over all the emotional distress. However, it may not be so easy with an unmarried woman.

How will a prospective surrogate applicant come to know about her acceptance in the surrogacy program by the Little Angels?

Little Angels shall disclose some general information of a prospective surrogate applicant to the Intending Parents, on terms and conditions mutually agreed upon by the surrogate and Little Angels. Then, we will negotiate your claim of compensation for carrying the child with the Intending Parents and after their acceptance for the same we will arrange a meeting between you and the Intending Parents.

What is the role of the Little Angles during this entire process of surrogacy?

Little Angels will represent the Intended Parents and perform all such work which is essential for a successful surrogacy. We will undertake work of sourcing egg donors, surrogate mother and to provide all the medical and legal assistance to all the parties of the surrogacy arrangement. In other words, Little Angels will be involved in all the activities which will lead to a successful surrogacy.

Will the Surrogate Mother be entitled to claim compensation for rendering her services?

Little Angels does not claim nor decide the amount of compensation to be given to the surrogate mothers. Our role is to covey the claim made by the Surrogate Mother to the Intending Parents; however during this process we help both the parties to calculate their estimate for the whole process of surrogacy and both the parties are free to discuss these amounts at the time of their personal meetings. Being a specialised in the field of reproductive technology and fertility, we are in better position to give an near to perfect estimate of the parties of surrogacy arrangement; hence, our experience is only the guiding force as the final decision rests with the Intending Parents and Surrogate Mohter.

How do we take care of the Surrogate Mother during the period of pregnancy?

It is obvious for the Intending Parents to be concerned about the place where the Surrogate Mother will be accommodated during the period of pregnancy, as it is important for health of the surrogate and the child which she will be carrying. To put your query to the rest, we have to say that Little Angels do have such arrangement in the form of surrogacy house; however, whether to stay in that particular place or not is the decision that has to be taken by the Intending Parents and the Surrogate Mother while discussing the term of the surrogacy agreement.

What would be the implication of a Surrogate Mother's sexual contact with her husband during the period of surrogacy/pregnancy?

Little Angels follow a strict policy, which prohibits Surrogate Mother form having sexual intercourse (whether protected or non-protected) with her spouse or any other individual during the period of pregnancy. Little Angels has adopted strict implementation of this policy as to avoid greater dangers to the health of the Surrogate Mother and consequently, to the Child which she will be carrying during the period of surrogacy.

Do we conduct tests on Intending Parents?

Tests on the Intending Parents are part of a safety measure taken by the Little Angels and the associate medical practitioners; which is based on the guidelines issued by the Indian Council of Medical Research. These tests ensure that the Intending Parents are not ailing from disease which might affect health of the Surrogate Mother and thereafter the new born. This precautionary step is carried on in the interest of the Surrogate Mother and the Child born through such process of surrogacy.

Can a Surrogate Mother abort the child during the period of pregnancy?

There is no yes or no answer to this question as this depends upon the circumstances which arise during the term of surrogacy. Little Angels advise the Intended Parent and the surrogate to discuss and to come to an agreement on this aspect of surrogacy arrangement. It is understood fact that carrying a child becomes dangerous for the safety and health of the Surrogate Mother option of abortion is taken into consideration.

What if miscarriage happens?

In such situation even after due diligence a miscarriage happens then the Surrogate Mother is compensated for the period she was holding the child, that amount is not refunded to the Intending Parents.

To become a Surrogate Mother is it required to obtain by spouse's consent?

As per the policy implemented by the Little Angels and guidelines issued by the Indian Council of Medical Research it is utmost important for a married surrogate mother to obtain due consent of her spouse. There are various objective behind this clause as this clause help acknowledge the support which the surrogated mother receives during the process of surrogacy; and on the other hand, it reduces possibility of sexual intercourse between the husband and the surrogate mother during the period of pregnancy, as they both will be aware about the consequences of their actions on the health of the child as well as that of the Surrogate Mother.

Does the baby have genetic link to intending parents?

No, the Surrogate Mother will only be the carrier for the child; this does not mean that there is a genetic link between her and the child. Surrogacy involve help of various types of Assisted Reproductive Technologies, wherein the sperm and ovum are artificially fertilised; moreover the genes if not of the Intending Parents they are of a third party sperm/egg donor hence, it does not create any genetic link between the surrogate mother and the child. When, the child will carry the genes of the Intended Parents there will be no genetic link.