How Does the Surrogacy Legal Process Work in Indian Courts?

Introduction

The best way to ensure you are well-prepared for the complexities of surrogacy in India is to go through a comprehensive checklist before diving into the legal intricacies.

The Right Surrogacy Arrangement

Traditionally, surrogacy involves the surrogate using her own eggs, while gestational surrogacy involves the surrogate carrying an embryo created from the intended parents' or donors' genetic material. You should determine which type of surrogacy is most appropriate for your family.

Choose a reputable surrogacy agency

The process of surrogacy can be streamlined and guided at every stage by a reputable surrogacy agency. Make sure the surrogacy agency you choose adheres to the laws and ethical guidelines governing surrogacy in India.

Consult a medical professional

The first and most important step in the checklist is to consult a fertility specialist and a medical professional in order to determine your eligibility for surrogacy and create an embryo that a surrogate will be able to receive.

Knowing the legal landscape is essential

Surrogacy laws in India were significantly changed over the last few years, and it is crucial that you are familiar with them. On January 25th, 2022, the new Surrogacy (Regulation Act, 2021), which went into effect on January 25th, 2022, was in place for the purpose of providing a guideline for legal requirements and restrictions. Those with financial means cannot abuse and take advantage of the charitable surrogacy option.

A new regulation amending regulation governing surrogacy procedures impacts andrologists. As a result of this amendment, Andrologists are now required to possess an MCh/DNB in urology, an MS in general surgery, or an FNB/MCh/DM in reproductive medicine in order to qualify as an Andrologist. Furthermore, they are mandated to have accrued at least two years of experience in surgical sperm retrieval and to have gained practical expertise in various surgical sperm retrieval procedures, such as PESA, TESA, TESE, MESA, and MICROTESE. It is the aim of these updated qualification standards to ensure that Andrologists are proficient and competent within the field of reproductive medicine.

The Surrogacy (Regulation) Act of 2021, which was passed in May of 2021, greatly incorporates these amendments into its overarching framework. The primary purpose of this Act is to regulate surrogacy arrangements with a particular focus on the protection of the rights and interests of surrogate mothers, intended parents, and the offspring born through the process of surrogacy. Accordingly, the rules established therein provide clarity and a set of guidelines as to how effective the Act is going to be implemented, thereby encouraging ethical practices as well as protecting all stakeholders in surrogacy agreements.

Surrogacy (Regulation) Amendment Rules of 2023 have been implemented, and it is imperative that both individuals and couples contemplating surrogacy, as well as healthcare professionals who take part in surrogacy procedures, remain informed about the updated directives and prerequisites contained in the rules. In order to align with the legal framework and promote responsible and ethical surrogacy practices in India, strict adherence to these regulations is essential.

Planning for your financial future

Surrogacy can require a significant investment. Create a budget that covers medical expenses, agency fees, surrogate compensation, legal fees, and any other costs that may need to be covered.

Indian Courts: Step-by-Step Guide

It's time to navigate the legal aspects of surrogacy in India once you have completed the checklist and you're ready to move forward with the procedure. Here's a step-by-step breakdown of the legal process to see what you can expect:

Preparation of the Surrogacy Agreement

Legally binding surrogacy agreements are usually signed at the beginning of the surrogacy process. In this agreement, the intended parents, the surrogate mother, as well as all other parties involved are outlined. Consult a lawyer to draft an agreement that complies with Indian surrogacy laws and is comprehensive in nature.

Petition to the court

After drafting the surrogacy agreement, you must file a petition in the appropriate court to seek approval for the surrogacy arrangement. The court will look at the agreement and ensure that it is in compliance with legal standards. In order to obtain an order for Parentage and Custody of the child that will be born through surrogacy, the application should be drafted according to section 4(iii)(a)(ii).

For the purpose of filing the case in the Indian courts, the following documents are required: 

1. Aadhar Card of the Intending Mother 

2. An Aadhar card for the surrogate mother. 

3.Mrg. Certificate of the Intending Mother 

4. A copy of the Medical Indication Certificate 

5. Copy of the Recommendation from the Infertility Clinic (Pref. Govt) 

6. Copy of the Medical and Fitness Certificate of the Surrogate Mother

 7. Consent letter from the Surrogate Mother 

8. Proof of Surrogate Mother's Insurance Coverage

Hearing in the courtroom

Upon receipt of your petition, a hearing will be scheduled to examine the details of the surrogacy arrangement. It may be necessary for all parties involved to testify during the hearing. Upon completion of the hearing, the court will issue an order approving the surrogacy if it is satisfied with the findings. The end to end process should take between 3 and 6 months, depending on how much documentation you carry and if no objections are raised to any of the court's requirements. However, it may even happen sooner than that.

The process of obtaining a birth certificate

Following the court's approval, you will be able to proceed with the surrogacy process. Once the child has been born, you will apply for a birth certificate in the name of the intended parents after the child has been born.

Conclusion

Your child will be able to travel with you once he or she has received a passport and an exit visa, once the birth certificate is issued. Surrogacy in Indian courts requires careful planning, legal expertise, and adherence to relevant laws and regulations in order to successfully navigate the legal process. Consult with a surrogacy and matrimonial lawyer who specializes in surrogacy to ensure the success of your surrogacy journey. Surrogacy laws in India may differ from one state to another, therefore it is imperative that you seek legal advice tailored to your specific circumstances in order to ensure your surrogacy journey is successful. As a result of this checklist and step-by-step legal process, you will be able to embark on your surrogacy journey with confidence, knowing that you are taking the right legal steps.