Permanent legal guardianship

Hi 

In your case, yourself and your wife are legal guardians for the child born through ART(Assisted Reproductive Technique/ Surrogacy). By default you the child's parents and the surrogate mother does not have any right whatsoever. (please refer to laws appended below).

as a mother of the child, your partner has full rights to decide on the health care, money matters etc of the child and should act normally like a parent.  By law, you are the parents of the child. 

 In India the surrogate is not  considered as the legal mother. As per ICMR Guidelines 2005, a  surrogate mother  cannot  be genetically related to the child . She  is legally and psychologically  counselled that she will not be having any rights over the child. Her rights  and obligations towards the intended  parents as well the child are formulated  in the gestational surrogacy agreement. Moreover,  a child born through  surrogacy shall be presumed to be the legitimate child  of the intended parents/s  and shall have all the legal rights to  parental support, inheritance and all other privileges which a child born  naturally to the intended parents/s would have had. 

Who is the legal mother of the surrogate child    under Indian law? 
As per the Indian Council of Medical Research (ICMR Guidelines) the surrogate mother should not be biologically connected to the child (Guideline 1.2.33).The Indian Law recognises the Intended mother only as the legal mother in surrogacy arrangements. Also Guidelines 3.10.1 and 3.16.1 make it very much clear that the intended parents only would be the legal parents of the child with all the attendance rights, parental responsibility etc. Also Guideline 3.5.4 states that the surrogate mother shall not be the legal mother and the birth certificate shall be in the name of the genetic parents. 3.5.5 Provides that the surrogate mother shall relinquish in writing all the parental rights over the child. India is very soon going to enact its legislation on the field of Assisted Reproductive Technology. The Proposed act also has the same favourable provisions. 

Thank you very much for your detailed response Sir.

My partner is an American man, we are married in the USA but India doesn't recognize same-s*x marriages and therefore our understanding is that he wouldn't be automatically be recognized as my child's guardian unless we draw up some sort of paperwork that assigns him legal guardianship.  Please advise if this is possible.