Surrogacy law in India is well known for its premature stage. The Law Commission has made some observations regarding controlling surrogacy arrangement but the guidelines of ICMR remain as the law as on date, without any stipulation. With a view to regulate surrogacy the ICMR guidelines will remain effective until an act comes into force. The law as the ICMR Guidelines is gradually coping up with the world. Under this present situation, Commercial surrogacy is legal in India as because India is the member of the club of a small number of countries, permitting commercial surrogacy. Over and above, The Supreme Court of India has consented to commercial surrogacy in the country and also held that commercial surrogacy contract is enforceable. The situation has made many childless couples to get their surrogate child.
The ICMR Guidelines in regards to surrogacy are:
It the context of India, any known or unknown person may become a surrogate mother of the child of a childless couple desiring for a child. In case any relative desires to act as the surrogate mother, she must belong to the same generation of the desiring couple wishing for surrogating.
The procurement of surrogate mother can be possible through semen bank or law firms. These law firms and semen banks need to be accredited, although the interested couple and the surrogate mother must conduct the negotiations.
A surrogate mother should not cross her age over 45 years. The ART clinic must make it sure that the surrogate mother is in a position to satisfy all the medical criteria to undergo full term of her pregnancy for surrogating a child.
No woman can surrogate more than three times in her life time.
Incase of death or divorce or even refusing to accept the child by the commissioning couple, a surrogate arrangement must look into the financial support for the surrogate child, before the child is born.
To maintain bond of love to the child, one of the parents must be the donor as the biological parent. In case the parent is single he / she must be the donor.
The surrogate child’s birth certificate must contain the name/s of the intended parent/s only.
All the genuine expenses related to documentary evidence pertaining to financial arrangements for the cause of surrogacy, surrogate mother’s pregnancy and its related other medical expenses must be made available to the surrogate mother.
There must be a contract, governing the surrogacy arrangement, between the childless couple and the surrogate mother. The contract must reflect about the terms and conditions related to consenting to surrogate. The surrogate mother should bear the child under the agreement with the couple and their other family members which must be contained in the contract. Artificial insemination related medical procedure, reimbursement of all related expenses for carrying the pregnancy up to full term, followed by handing over the child to the contracted parents.