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The Surrogacy (Regulation) Act, 2024 followed by the new laws as of February 21, 2024,

As of February 2024, India's Surrogacy (Regulation) Act of 2024 bans commercial surrogacy, and only allows altruistic surrogacy. The 2024 act also restricts surrogacy services to married Indian couples who have been legally married for at least five years, and who could provide a certificate of proven infertility. The act introduces several key features, including:

  • Prohibition of commercial surrogacy.
  • Limitation of surrogacy to heterosexually married Indian couples with proven infertility.
  • Surrogacy is not allowed for single men, women, live-in and same-sex couples.
  • Mandatory counseling sessions for both intended couples and surrogate mothers The new laws Leave the door open for Indians in India, OCI holders and NRI’s with Indian Passports, but ban surrogacies for all non-Indians in India.
  • Sex selection is strictly prohibited.
  • According to the law, couples intending to undergo IVF or surrogacy must be legally married and meet certain age criteria. The woman partner must be aged between 23 and 50 years, while the man partner must be within the age range of 26 to 55 years. They should not have any children from previous marriages or relationships. (Source: "India Changes Surrogacy Rules; Couples with Medical Condition Can ... - MSN")
  • Our agency offers creative programs in other countries, including legal surrogacy in the USA and Canada.
    • The Assisted Reproductive Technology (ART) Act prohibits the sale, transfer, or use of sperm, eggs, gametes, zygotes, and embryos within or outside of India. The only exception is if the person is transferring their own gametes and embryos for personal use with the permission of the National Board of Assisted Reproductive Technology (NARTSB).
    • While it is illegal to export sperm or frozen eggs from India, embryos conceived at Indian IVF clinics may be shipped abroad for use in legal surrogacy programs in surrogacy-friendly countries, using a NOC and courier service.
    • Low-cost choice: Create your embryos in India using Indian Egg Donor ship oversees, say to the USA. Cost typically around $16,000 versus $35,000 in the USA

India’s Surrogacy Bill: Detailed Discussion

SURROGACY LAWS IN INDIA

The Surrogacy (Regulation) Act, 2024 followed the new laws as of February 21, 2024, offers a comprehensive framework to oversee surrogacy arrangements in India. Let us delve into its key provisions:

  • Defining Surrogacy
  • The bill classifies surrogacy as "the transfer of an embryo formed using the gametes of either an intended couple or a single intended parent into the uterus of a surrogate mother." Additionally, it defines a surrogate mother is described as "a woman who voluntarily carries and gives birth to a child for either an intended couple or a single intended parent." (Source: "India's Surrogacy Bill: A Path to Parenthood or a Barrier to Hope ...")
  • A Ban on Commercial Surrogacy
  • One of the most notable aspects of the bill is its prohibition of commercial surrogacy.
  • Eligibility Criteria
  • The bill paves the path to parenthood exclusively for heterosexually married Indian citizens who can prove infertility. Additionally, surrogate mothers must be aged between 25 and 35, and be married with one or more children.
  • Pre-Surrogacy Counseling
  • Prior to beginning the surrogacy journey, the intended couple and the surrogate mother must take part in a series of counseling sessions, to ensure they have a comprehensive understanding of the process.
  • The Surrogacy Board
  • To oversee and regulate the surrogacy industry, the bill sets up a Surrogacy Board. This body will handle issuing surrogacy licenses, monitoring surrogacy clinics, and addressing any grievances that may arise.

Details of Legal Aspects of Surrogacy in India

While on February 21st, 2024, the Indian Government liberalized the restrictions and allowed the use of egg and sperm donors for surrogacy, other aspects of the law have been left intact as discussed below:

Features of the Surrogacy (Regulation) Bill, 2021 that are still in place:

  • It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
  • It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
  • Only Indian couples can choose surrogacy in the country.
  • Surrogacy for single man is banned in India
  • Okay to do surrogacy in India if you are an Indian citizen and have H-1 visa or Green Card in the USA.
  • Okay to do surrogacy in India if you are of Indian Origin but now are a USA, Canada or other country’s Citizen with foreign Passport, but have a OCI card.
  • Your baby will be an Indian Citizen by birth. The parent can then apply for non-Indian citizenship based upon the laws of the country where the parents have passports.
  • It is necessary for the couple to obtain a certificate of essentiality and a certificate of eligibility before proceeding with surrogacy.
  • It also provides that couples should not abandon the child born out of surrogacy under any circumstance. The newborn child shall be entitled to all rights and privileges that are available to a natural child.
  • All surrogacy clinics in the country must be registered by the appropriate authorities to undertake surrogacy or its related procedures.
  • The Bill provides various safeguards for surrogate mothers. One of them is insurance coverage.
  • It also specifies that no sex selection can be done when it comes to surrogacy.

Surrogacy Laws In India

Summary of Eligibility Requirements:

Although the Surrogacy (Regulation) Act of 2022 represents a notable advancement, it has not evaded criticism:

  • Intending parents:
    • Must be Indian citizens or OCI card holders and hold valid passports.
    • Married for at least 5 years.
    • Be between 23-50 years (female) and 26-55 years (male).
    • No living biological or adopted children.
    • Medically certified infertility.
  • Surrogate mother:
    • Indian citizen with valid ID proof.
    • Between 25-35 years old.
    • Married woman with at least one biological child.
    • Physically and mentally fit for pregnancy.
    • Close relative of intending parents (defined by the Act).

Legal Procedures

Usually handled by an attorney our agency can arrange for you. Allow a few weeks for the legal work to be completed in parallel with the start of the surrogacy process and paperwork. There are five items including:

  • Obtaining certificates of eligibility from a designated authority for both intending parents and the surrogate mother.
  • Entering a surrogacy agreement compliant with the Act.
  • Court approvals at various stages of the process.
  • Registration with the Surrogacy Board established by the Act.
  • Complying with detailed medical protocols and psychological evaluations.

Court Filings to be considered:

  • Before Birth:
    • Surrogacy Agreement: Intended parents must engage in a legally binding surrogacy agreement with the surrogate mother. This agreement should outline the rights, responsibilities, and expectations of both parties involved in the surrogacy arrangement.
    • Parentage Order: In some cases, intended parents may need to obtain a parentage order from the court to establish their legal rights as the parents of the child born through surrogacy. This order typically terminates the rights of the surrogate mother and her spouse (if applicable) and confers parental rights onto the intended parents.
  • After Birth:
    • Documentation and Filings: Intended parents may need to prepare and submit various legal documents and filings to the appropriate authorities, including birth certificates, affidavits, and consent forms, to complete the surrogacy process and establish their legal parentage at the end of the surrogacy after the baby is born.

Seek Professional Legal Help:

Due to the complexities involved, it is strongly advised to seek guidance from a qualified legal professional specializing in surrogacy law in India. They can comprehensively assess your individual circumstances, analyze relevant legal aspects, and guide you through the process while mitigating potential risks.

Remember, this information is intended for general awareness only and does not constitute legal advice. For specific guidance and support, please contact our agency or for a referral to a lawyer specialized in surrogacy law in India.

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