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Can a surrogate mother claim right over the child and What are the rights available to a Commissioned Parent’s ?

Q.After long years of marriage, my wife could not conceive and hence we made an arrangement with one of my wife’s friend who was divorced to bear a child for our purpose. Can the friend claim any right over the child? What are the legal safeguards that are to be taken by us? What are the rights available to a surrogate mother?

Every woman cherishes the experience of motherhood which the nature has bestowed it within a women. But some of them due to physiological condition cannot give birth and desire to be mother and for them Surrogacy is a most viable option. Medical advancement has facilitated the alternative solutions like Artificial Reproductive Technology (ART), In-Vitro Fertilization (IVF) and Intra-Uterine Injections (IUI) to bear the child of their own.

Surrogacy has been derived from Latin word “surrogatus” means a substitute, a person appointed to act in place of a mother.  We can say a surrogate mother is a woman who bears a child on behalf of another woman wherein it can be either by her own egg or via other’s fertilized egg in her womb. This has been stated under Report 228 of Law Commission of India. The Report of Committee and Inquiry into Human Fertilization and Embryology or Warnock Report (1984) has said in its report that surrogacy is a practice wherein a woman bears a child for another women with an intention that she hands over the child after birth to the concerned mother. Surrogacy can be commercial or altruistic in nature, wherein surrogate receives financial reward for her pregnancy or relinquishes the child or not. Surrogate mother should relinquish all parental rights over the child is the guidelines that has been stated in Assistant Reproductive Technique (ART) Regulation Bill, 2010 and so she cannot claim a right over the child.

Couple seeing surrogacy should enter into agreement with the surrogate mother and bear her expenses during and after delivery too. A woman should be more than 21 years of age and not more than 35 years of age. Surrogate mother should be medically tested for any diseases too. The child will get the Commissioned Parent’s name on its birth certificate and not surrogate mother.

In Commercial Surrogacy, surrogate mother enters into an agreement with couple or single parent to bear the pregnancy and in return she will be paid by the agent a certain amount.  In India usual fee is around $25,000 compared to USA wherein this amount is just 1/3rd of it. If we see the legality of surrogacy we can state Article 16.1 of Universal Declaration of Human Rights 1948 where both men and women who are of proper age and without any limitation of race, religion have the right to marry and make family. In B. K. Parthasarthi v Government of Andhra Pradesh (14 September 1999) High Court held that right to reproduce of an individual is right to privacy and it is a basic civil right of a man.

by Sushma Javare.